                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                   December 6, 2007
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                     Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 07-2144
 v.                                              (D.C. No. CR-07-215-MV)
                                                         (D. N.M.)
 EFRAIN TREJO-ALVAREZ,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.


      Efrain Trejo-Alvarez pled guilty to re-entering the United States illegally

after a previous deportation. See 8 U.S.C. § 1326. The district court sentenced

him to 21 months imprisonment, at the low end of the advisory Sentencing

Guidelines range. On appeal, Mr. Trejo-Alvarez’s counsel filed an Anders brief

and moved to withdraw as counsel. See Anders v. California, 386 U.S. 738

(1967). We received no response from Mr. Trejo-Alvarez, and the government


      *
         After examining counsel’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
order and judgment is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
also declined to respond. For the reasons set forth below, we discern no

meritorious issues for appeal, and we therefore grant the motion to withdraw and

dismiss the appeal.

                                       ***

      A native of Mexico, Mr. Trejo-Alvarez was found in Doña Ana County,

New Mexico in October 2006, after having been deported from the United States

on four prior occasions. He was charged with one count of illegal re-entry

following deportation, in violation of 8 U.S.C. § 1326. Because his prior

deportation was subsequent to a felony conviction, Mr. Trejo-Alvarez faced a

possible prison sentence of up to ten years. See id. § 1326(b)(1). Mr. Trejo-

Alvarez pled guilty to a one-count information charging him with reentry of a

removed alien.

      Pursuant to the advisory United States Sentencing Guidelines, Mr. Trejo-

Alvarez’s conviction carried a base offense level of 8. See U.S.S.G. § 2L1.2(a).

But because he had been deported following a felony conviction, the Guidelines

recommended a 4-level enhancement. See id. § 2L1.2(b)(1)(D). Subtracting 2

levels for acceptance of responsibility, Mr. Trejo-Alvarez’s final suggested

offense level was 10. Because of his prior criminal convictions, Mr. Trejo-

Alvarez was classified at criminal history category level V. That offense level

and criminal history category resulted in a proposed Guidelines sentencing range

of 21-27 months imprisonment.

                                        -2-
      Mr. Trejo-Alvarez did not challenge the facts set forth in the presentence

report, which included the Guidelines range calculation and information about his

background, criminal history, and other potentially relevant factors. He did,

however, file a sentencing memorandum pointing out that all of the points

assessed in determining his criminal history category were for immigration

violations. Mr. Trejo-Alvarez suggested that, in these circumstances, his

criminal history was overstated. He argued that a lesser criminal history

category, leading to a suggested Guidelines range sentence of 15-21 months

imprisonment, was more appropriate. Even so, Mr. Trejo-Alvarez argued that the

district court should depart or vary downward and sentence him to 12 months and

1 day in prison. This was a more reasonable sentence, he argued, in light of the

immigration-related nature of his recent convictions and having ailing elderly

parents at home in Mexico.

      The district court disagreed. While Mr. Trejo-Alvarez’s criminal history

points were assessed for immigration offenses, Mr. Trejo-Alvarez also had 13

past convictions that were not considered under the Guidelines. The court said

that there were “too many prior convictions, and the nature of the offenses are

simply too serious for the Court to simply disregard, and say that under Booker, a

12-month and one day sentence is appropriate.” May 24, 2007, Sentencing Hr’g

Tr. at 9-10. The court distinguished Mr. Trejo-Alvarez’s situation from those

who came to this country only to work and whose only prior criminal acts are

                                        -3-
illegal entry or re-entry. Mr. Trejo-Alvarez had repeatedly been “involved in

fights, and drinking, and stealing . . . [a]nd resisting officers” since he arrived in

the United States. Id. at 10. The district court acknowledged the factors in 18

U.S.C. § 3553(a) and the facts set forth in the presentencing report, and sentenced

Mr. Trejo-Alvarez to 21 months in prison, followed by two years of unsupervised

release, the low end of the suggested Guidelines range. 1

                                          ***

      Pursuant to the Supreme Court’s decision in Anders v. California, a court-

appointed defense counsel may “request permission to withdraw [from an appeal]

where counsel conscientiously examines a case and determines that any appeal

would be wholly frivolous.” United States v. Calderon, 428 F.3d 928, 930 (10th

Cir. 2005) (citing Anders, 386 U.S. at 744). This process requires counsel to

          submit a brief to the client and the appellate court indicating any
          potential appealable issues based on the record. The client may then
          choose to submit arguments to the court. The [c]ourt must then conduct
          a full examination of the record to determine whether defendant’s
          claims are wholly frivolous. If the court concludes after such an
          examination that the appeal is frivolous, it may grant counsel’s motion
          to withdraw and may dismiss the appeal.

Id. (citing Anders, 386 U.S. at 744).


      1
         Because Mr. Trejo-Alvarez was convicted while on supervised release
from a prior immigration conviction in the District of Arizona, a petition to
revoke supervision was filed in the District of Arizona and jurisdiction was
transferred to the District of New Mexico. The district court sentenced Mr. Trejo-
Alvarez to 12 months for the violation of the terms of his release, but allowed the
sentence to run concurrently with the 21-month sentence it had just imposed.

                                          -4-
      In his Anders brief, counsel noted that this appeal would conceivably be

meritorious only if (1) the guilty plea were not voluntary or (2) the sentence were

unreasonable. After conducting a full examination of the record, we agree with

counsel’s conclusion that no basis in law or fact exists for either of these

arguments.

      A valid guilty plea must be knowingly, intelligently, and voluntarily made.

See United States v. Gigot, 147 F.3d 1193, 1197 (10th Cir. 1998); see also Fed. R.

Crim. P. 11. The record indicates that the district court fulfilled the requirements

set out in Rule 11 and those announced in Gigot to ensure the validity of the plea.

See generally Jan. 31, 2007, Plea Hr’g Tr. (reflecting that the district court judge

verified a factual basis for the plea, questioned the defendant and confirmed that

he fully understood the charges against him and the consequences of the plea, and

otherwise ensured that the plea was freely, voluntarily, and intelligently made).

Mr. Trejo-Alvarez has failed to put forward any evidence or arguments that would

place the plea’s validity in doubt, and so any appeal on these grounds would be

frivolous.

      We also fail to find any non-frivolous grounds for appeal as to the

reasonableness of the sentence. As counsel points out, Mr. Trejo-Alvarez was

sentenced at the low end of the advisory Guidelines range. As such, we accord a

presumption of reasonableness to his sentence. See Rita v. United States, 127 S.

Ct. 2456, 2462-63 (2007); United States v. Garcia-Lara, 499 F.3d 1133, 1136-37

                                         -5-
(10th Cir. 2007). Expressly bearing in mind the various sentencing factors set

forth by Congress in 18 U.S.C. § 3553(a), the district court acknowledged and

considered Mr. Trejo-Alvarez’s argument for a reduced sentence, but it ultimately

decided that the Guidelines-recommended range was appropriate under the

§ 3553(a) factors, in light of Mr. Trejo-Alvarez’s history and characteristics. We

can find no evidence in the record to suggest any abuse of discretion by the

district court in the procedures it employed at sentencing or the substantive result

it reached.

                                        ***

      For the foregoing reasons, we grant counsel’s motion to withdraw and

dismiss the appeal.




                                       ENTERED FOR THE COURT



                                       Neil M. Gorsuch
                                       Circuit Judge




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