                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                   UNITED STATES COURT OF APPEALS                   July 29, 2008

                               TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                    Clerk of Court


 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                       No. 07-1492
       v.                                                D. Colo.
 RAUL ROJAS-CRUZ, a/k/a Carlos                (D.C. No. 07-CR-00228-WYD)
 Cruz-Vizcarra, a/k/a Jose Ramon
 Vizcarra, a/k/a Carlos Discardo Cruz,
 a/k/a Carlos Cruz, a/k/a Ramiro Cruz-
 Vizcarra,

             Defendant-Appellant.


                              ORDER
                   GRANTING MOTION TO WITHDRAW
                        & DISMISSING APPEAL


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



      Raul Rojas-Cruz pled guilty pursuant to a plea agreement to unlawful

reentry of a deported alien subsequent to an aggravated felony conviction in

violation of 8 U.S.C. § 1326(a) and (b)(2). The district court sentenced him to

thirty months imprisonment and three years supervised release. Rojas-Cruz’s

counsel filed an Anders brief and moved for leave to withdraw. See Anders v.

California, 386 U.S. 738 (1967). We received no response from Rojas-Cruz and
the government declined to submit a brief. Finding no meritorious issues, we

grant counsel’s motion to withdraw and dismiss the appeal.

      Rojas-Cruz pled guilty pursuant to a plea agreement entered into with the

government. At the plea hearing, the district court conducted a Rule 11 colloquy

with Rojas-Cruz and determined he entered his plea of guilty freely and

voluntarily. See Fed. R. Crim. P. 11. It also determined there was an

independent factual basis for his plea. Id.

A presentence investigation report (“PSR”) was prepared using the 2006 edition

of the United States Sentencing Guidelines manual. The government filed a

motion requesting Rojas-Cruz receive a one-level decrease in his offense level for

acceptance of responsibility. See USSG §3E1.1(b). Based on Rojas-Cruz’s total

offense level and criminal history score, the PSR recommended a guideline range

of thirty to thirty-seven months imprisonment. Rojas-Cruz filed a motion seeking

a sentencing variance from the advisory guidelines. 1 Rojas-Cruz argued his

history and characteristics called for a below-guideline sentence and requested a

sentence of eighteen months.

At sentencing, Rojas-Cruz’s counsel argued in support of the motion for variance.

The government requested a sentence at the bottom of the guideline range. After

      1
         A departure occurs “when a court reaches a sentence above or below the
recommended Guidelines range through application of Chapters Four or Five of
the Sentencing Guidelines.” United States v. Atencio, 476 F.3d 1099, 1101 n.1
(10th Cir. 2007). A variance occurs “[w]hen a court enhances or detracts from
the recommended range through application of ' 3553(a) factors.” Id.

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reviewing the sentencing factors found in 18 U.S.C. § 3553(a) and Rojas-Cruz’s

record, the court concluded an eighteen month sentence was too lenient and

sentenced him to thirty months imprisonment. A separate judgment was entered

and Rojas-Cruz filed a notice of appeal.

      Anders holds “if counsel finds his [client’s] case to be wholly frivolous,

after a conscientious examination of it, he should so advise the court and request

permission to withdraw.” 386 U.S. at 744. Counsel must submit to both the court

and his client a “brief referring to anything in the record that might arguably

support the appeal.” Id. The client may then “raise any points that he chooses.”

Id. Thereafter, the court must completely examine all the proceedings to

determine the frivolity of the appeal. “If it so finds it may grant counsel’s request

to withdraw and dismiss the appeal . . . . [I]f it finds any of the legal points

arguable on their merits (and therefore not frivolous) it must, prior to decision,

afford the indigent the assistance of counsel to argue the appeal.” Id.

      Rojas-Cruz’s counsel indicates she could not find any non-frivolous

appellate issues. We have carefully reviewed the record and likewise find no

non-frivolous issues. The record demonstrates Rojas-Cruz’s guilty plea was

knowing and voluntary. See Brady v. United States, 397 U.S. 742, 755-56 (1970).

There was sufficient evidence to form a factual basis for the plea. See United

States v. Blair, 54 F.3d 639, 643 (10th Cir. 1995) (“Fed. R. Crim. P. 11(f)

requires a court to satisfy itself that there is a factual basis for a guilty plea before

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entering judgment on such a plea.”). The guideline range was properly calculated

and the district court properly applied the § 3553(a) factors. See United States v.

Geiner, 498 F.3d 1104, 1107 (10th Cir. 2007) (holding sentence reflecting a

proper guideline calculation and application of § 3553(a) factors is procedurally

reasonable). The district court considered a non-guideline sentence, but

ultimately decided to sentence Rojas-Cruz at the bottom of the guideline range.

Its reasons for imposing the sentence were well explained and no evidence

counters the presumption of reasonableness we give his considered guideline

sentence. See United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006)

(applying a presumption of reasonableness to sentences within the properly

calculated guidelines range).

      Rojas-Cruz’s appeal is DISMISSED and counsel’s motion to withdraw is

GRANTED.

                                               ENTERED FOR THE COURT


                                               Terrence L. O’Brien
                                               Circuit Judge




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