                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  June 17, 2008
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                     No. 07-2215
                                                 (D.C. 2:07-CR-891-MCA)
 CESAR MANUEL MARQUEZ-                                   (D. N.M.)
 RAMIREZ,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before O’BRIEN, MCKAY, and GORSUCH, Circuit Judges.


      Cesar Manuel Marquez-Ramirez pled guilty to an information charging him

with illegal reentry of a deported alien. The district court sentenced him to 41

months imprisonment followed by 2 years of supervised release. On appeal, Mr.

Marquez-Ramirez’s counsel filed an Anders brief and moved to withdraw as

counsel. See Anders v. California, 386 U.S. 738 (1967). Mr. Marquez-Ramirez



      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant counsel’s request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent except under the doctrines of law of the case,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.
filed a pro se response arguing that the district court erroneously calculated his

offense level under the Sentencing Guidelines. The government declined to file a

brief. 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.

                                       * * *

      On February 6, 2007, Mr. Marquez-Ramirez encountered United States

Border Patrol agents while he was in custody at the Doña Ana County Detention

Center in Las Cruces, New Mexico. Mr. Marquez-Ramirez was then transferred

to the Las Cruces Border Patrol Station for processing. Subsequently, Mr.

Marquez-Ramirez pled guilty to an information charging him with reentry of a

deported alien, in violation of 8 U.S.C. § 1326(a) & (b).

      According to the advisory United States Sentencing Guidelines

(“Guidelines”), Mr. Marquez-Ramirez’s conviction carried a base offense level of

8. See U.S.S.G. § 2L1.2(a). His specific offense characteristics resulted in a 16-

level enhancement due to a prior felony conviction for a “crime of violence.” 1

See id. § 2L1.2(b)(1)(A)(ii). This resulted in a total offense level of 24. Due to

Mr. Marquez-Ramirez’s acceptance of responsibility the offense level was

      1
         On January 12, 1994, Mr. Marquez-Ramirez was convicted of Burglary of
a Habitation in the 65th District Court, El Paso, Texas, Case No. 64666. See
Presentence Report (“PSR”) R., Vol. II., at 3. “Burglary of a dwelling” is
explicitly listed in the definition for a “crime of violence.” See U.S.S.G. § 2L1.2
Note 1(B)(iii).

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reduced by 3 points for a final offense level of 21. See id. § 3E1.1. The

Probation Office also assessed 6 criminal history points. See Presentence Report

(“PSR”) R., Vol. II., at 4-7. The 6 criminal history points corresponded to a

criminal history category level of III. Together, the offense level of 21 and

criminal history category level of III resulted in a proposed Guidelines sentencing

range of 46-57 months. The Probation Office, however, recommended that the

court depart downward under U.S.S.G. § 4A1.3(b)(1) to criminal history category

level II because level III “overrepresent[ed] . . . defendant’s criminal history.”

PSR, R., Vol. II, at 12.

      Mr. Marquez-Ramirez did not challenge any aspect of the facts outlined in

the PSR, but following the Probation Office’s recommendation he filed a written

motion for a downward departure to criminal history category II. R., Vol. I, Doc.

16. At sentencing, however, his counsel requested a departure to criminal history

category I, based on the time that had passed since Mr. Marquez-Ramirez’s felony

conviction; his compliance with the terms of his probation; the fact that this

sentence would be the longest term Mr. Marquez-Ramirez has served; and his

support from his family and pastor. See R., Supp. Vol. I., at 3-4, 6. After

entertaining these arguments, the district court adopted the PSR’s factual findings

and found a downward departure (only) to category II warranted, which combined

with his offense level of 21 resulted in a Guidelines range of 41 to 51 months. Id.

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at 8. The court then sentenced Mr. Marquez-Ramirez to 41 months, the minimum

term of imprisonment within the recommended range. Id.

                                        * * *

      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).

      In his Anders brief, counsel for Mr. Marquez-Ramirez represents that the

only possibly colorable basis for appeal is if the district court erred in departing

downward only to criminal history category II rather than to category I, and

further states that “[a]fter a conscientious investigation of both the record and the

applicable law, [he] has determined in his professional judgement that the

appellate issue discussed herein is without merit.” Br. at 1. In his response, Mr.




                                          -4-
Marquez-Ramirez argues that the district court committed a separate error when

calculating his offense level under the Guidelines.

      After conducting a full examination of the record, we discern no reason to

suggest that the district court abused its discretion in any way in departing to

category II rather than category I. See Gall v. United States, 128 S.Ct. 586, 591

(2007) (“[C]ourts of appeals must review all sentences—whether inside, just

outside, or significantly outside the Guidelines range—under a deferential abuse-

of-discretion standard.”). In assessing the appropriate extent of the downward

departure, the district court expressly took account of, inter alia, the details of

Mr. Marquez-Ramirez’s prior criminal history, including the fact that his prior

felony conviction was over a decade old; his support from his family and pastor;

and his expressed regret for his actions. The court thus fully considered Mr.

Marquez-Ramirez’s arguments for a downward departure pursuant to U.S.S.G.

§ 4A1.3(b), and indeed granted the departure for which he initially moved.

      With respect to the separate question whether the district court correctly

calculated his offense level, Mr. Marquez-Ramirez argues that his prior felony

conviction does not meet the definition of an “aggravated felony” necessary to

impose an enhancement under U.S.S.G. § 2L1.2(b)(1)(C) (a prior conviction for

an aggravated felony), making the 16-level enhancement invalid. Mr. Marquez-

Ramirez’s enhancement, however, was imposed under U.S.S.G.

                                          -5-
§ 2L1.2(b)(1)(A)(ii) (a prior conviction for a crime of violence). See PSR, R.,

Vol. II, at 3. The definition of “crime of violence” in Note 1(B)(iii) explicitly

lists “burglary of a dwelling” as sufficient to invoke this provision. Mr. Marquez-

Ramirez’s previous conviction for “burglary of a habitation” thus satisfies this

provision and leaves no non-frivolous issue to address on appeal.

                                       * * *

      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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