                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                     UNITED STATES COURT OF APPEALS January 29, 2008

                                 TENTH CIRCUIT                   Elisabeth A. Shumaker
                            __________________________               Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 07-1130
 v.                                             (D.Ct. No. CR-06-420-WYD)
                                                         (D. Colo.)
 ANGEL ROSARIO RODALES-
 REYES,

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before TACHA, Circuit Judge, and BARRETT and BRORBY, Senior Circuit
Judges.



      After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



      Appellant Angel Rosario Rodales-Reyes pled guilty to one count of

      *
         This order and judgment is not binding precedent except under the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.
unlawful reentry of a deported alien subsequent to a felony conviction, in

violation of 8 U.S.C. § 1326(a) and (b)(1). The district court sentenced Mr.

Rodales-Reyes to thirty-five months imprisonment – six months below the low

end of the advisory United States Sentencing Guidelines (“Guidelines” or

“U.S.S.G.”) range of forty-one to fifty-one months imprisonment. Although Mr.

Rodales-Reyes appeals his conviction and sentence, his attorney has filed an

Anders brief and a request for permission to withdraw as counsel, which we

construe as a motion to withdraw. See Anders v. California, 386 U.S. 738, 744

(1967). For the reasons set forth hereafter, we grant counsel’s motion to

withdraw and dismiss this appeal. Id.



                                   I. Background

      On October 16, 2006, a one-count indictment issued charging Mr. Rodales-

Reyes with unlawful reentry of a deported alien subsequent to a felony

conviction, in violation of 8 U.S.C. § 1326(a) and (b)(1). Mr. Rodales-Reyes pled

guilty as charged in exchange for the government’s offer to file a motion in

support of a three-level decrease for acceptance of responsibility and to

recommend a sentence at the bottom of the applicable advisory Guidelines range.



      After Mr. Rodales-Reyes pled guilty, a probation officer prepared a

presentence report calculating his sentence under the applicable Guidelines. The

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probation officer calculated the based offense level at 8 under U.S.S.G.

§ 2L1.2(a) and added a sixteen-level adjustment under U.S.S.G. § 2L1.2(b)(1)(A)

because Mr. Rodales-Reyes had been deported subsequent to a conviction for a

crime of violence – menacing with a deadly weapon, a felony offense. In

addition, based on Mr. Rodales-Reyes’s acceptance of responsibility for the

offense of conviction, the probation officer included a three-level reduction, for a

total offense level of 21. A total offense level of 21, together with a criminal

history category of II, resulted in a Guidelines imprisonment range of forty-one to

fifty-one months.



      Prior to sentencing, Mr. Rodales-Reyes filed a pro se motion for a

downward departure, which the probation officer considered as a request for a

variance under 18 U.S.C. § 3553(a). In his pro se pleading, Mr. Rodales-Reyes

contended the sixteen-level enhancement over-represented his criminal history

because his jury conviction for menacing with a deadly weapon stemmed from an

act of self-defense, and while the jury rejected his version of the incident, the

sentencing court felt inclined to impose a probationary sentence with no jail time.

Mr. Rodales-Reyes also suggested a variance was appropriate, given: 1) he was

not deported until four and one-half years after his conviction and three years

after he successfully completed his probation; and 2) he only returned to the

United States due to his familial obligations and responsibilities to the two

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children he fathered in this country, who are United States citizens. In response,

the probation officer recommended against a variance, explaining Mr. Rodales-

Reyes did not conduct himself as a law-abiding citizen because: 1) he received

convictions for driving while ability impaired and discharging a firearm following

his term of probation; and 2) his familial obligation, which motivated his return to

the United States, would continue following a term of imprisonment and

subsequent deportation.



      At the sentencing hearing, Mr. Rodales-Reyes’s counsel explained Mr.

Rodales-Reyes did not have any corrections or changes to the presentence report

or objections to the advisory Guidelines range, but reiterated the request for a

variance under § 3553(a). In support of the variance, counsel acknowledged the

conviction for menacing with a weapon is a class 5 felony in Colorado, and a

crime of violence, because it includes the elements of use, attempted use, or

threatened use of physical force against the person of another. However, he

argued such an offense did not warrant a sixteen-level offense increase under

U.S.S.G. § 2L1.2(b)(1)(A) and over-represented Mr. Rodales-Reyes’s criminal

history because the trial court sentenced Mr. Rodales-Reyes to probation and no

jail time, and, on remand after appeal, the trial court again sentenced him only to

probation, which Mr. Rodales-Reyes completed. He further noted Mr. Rodales-

Reyes did not harm anyone and his conviction was less serious than for other

                                         -4-
convictions warranting the same sixteen-level increase, including drug trafficking,

sexual assault on a child, assault, robbery, armed robbery, or murder. In addition,

his counsel pointed out the subsequent convictions for driving while ability

impaired and discharging a firearm occurred after completion of his term of

probation and constituted misdemeanors. Counsel also renewed the familial

motivation argument for the purpose of explaining Mr. Rodales-Reyes’s illegal

return to the country.



      After considering Mr. Rodales-Reyes’s arguments in favor of a variance,

the government’s objections thereto, and the defendant’s statement, the district

court noted it had considered the advisory Guidelines, together with the

sentencing factors in 18 U.S.C. § 3553(a), which it then explicitly recited. In

imposing the sentence, it granted Mr. Rodales-Reyes’s request for a variance,

stating it had merit, and imposed a below-Guidelines-range sentence of thirty-five

months imprisonment.



      After Mr. Rodales-Reyes filed a timely pro se notice of appeal, his

appointed counsel, who also represented him before the trial court, filed an

Anders appeal brief explaining that, after a conscientious examination of the

record, the appeal is wholly frivolous and no challenge could be made as to the

validity of the sentence because Mr. Rodales-Reyes received a sentence below the

                                         -5-
advisory Guidelines range; counsel then requested permission to withdraw. See

Anders, 386 U.S. at 744. Pursuant to Anders, this court gave Mr. Rodales-Reyes

an opportunity to respond to his counsel’s Anders brief. See id. Subsequently,

this court granted Mr. Rodales-Reyes’s pro se request for an extension of time for

filing a response, which extended his filing time to August 29, 2007. In a one-

paragraph letter received October 31, 2007, Mr. Rodales-Reyes again renewed his

desire to file a response out of time, to which this court responded, instructing

him to file a motion to file a response out of time, together with a response brief.

However, to date, Mr. Rodales-Reyes has filed no such motion or response.



                                   II. Discussion

      As required by Anders, we have conducted a full examination of the record

before us. See id. We review for reasonableness the sentence’s length, as guided

by the factors in 18 U.S.C. § 3553(a). See United States v. Kristl, 437 F.3d 1050,

1053 (10th Cir. 2006) (per curiam). Having made such a review, we find no

nonfrivolous basis for challenging the sentence imposed. Here, the district court

considered Mr. Rodales-Reyes’s request for a variance for a below-Guidelines

sentence, together with the sentencing factors in § 3553(a) and the advisory

Guidelines. The district court then sentenced him to thirty-five months

imprisonment, which is six months below the advisory Guidelines range of forty-

one to fifty-one months imprisonment. Because the district court considered the

                                          -6-
applicable Guidelines and sentencing factors in sentencing Mr. Rodales-Reyes,

we have no reason to conclude his sentence is unreasonable, especially in light of

the fact that Mr. Rodales-Reyes has not offered any nonfrivolous reasons

warranting a lower sentence.



                                  III. Conclusion

      For these reasons, no meritorious appellate issue exists. Accordingly, we

grant counsel’s motion to withdraw and DISMISS Mr. Rodales-Reyes’s appeal.



                                      Entered by the Court:

                                      WADE BRORBY
                                      United States Circuit Judge




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