                                                                                    FILED
                                                                        United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                             Tenth Circuit

                                  TENTH CIRCUIT                               March 23, 2011

                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 10-2105
                                                  (D.C. No. 2:09-CR-03413-MCA-1)
JESUS BARCELO-PICASO,                                         (D. N.M.)

      Defendant - Appellant.




                              ORDER AND JUDGMENT*


Before BRISCOE, Chief Circuit Judge, TACHA and O'BRIEN, Circuit Judges.


      Jesus Barcelo-Picaso pled guilty, without the benefit of a plea agreement, to illegal

reentry of a removed alien in violation of 8 U.S.C. § 1326(a) and (b). He was sentenced

to 21 months imprisonment. Finding no meritorious issues for appeal, his counsel has

submitted an Anders brief and a motion for leave to withdraw as counsel. See Anders v.

California, 386 U.S. 738 (1967). Counsel provided Barcelo-Picaso with copies of both

      *
        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). We have decided this case on the briefs.

        This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
documents and we informed him of his right to file a response. See 10th Cir. R.

46.4(B)(2). He did not file a response. Because we agree with counsel that there are no

meritorious issues, we grant the motion to withdraw and dismiss the appeal.

                                   I. BACKGROUND

      On June 13, 2001, Barcelo-Picaso, a citizen of Mexico, was convicted of, inter

alia, felony aggravated assault in Arizona state court. He was deported on May 27, 2009.

Less than four months later, on September 16, 2009, Barcelo-Picaso was found in Luna

County, New Mexico. He was charged with illegal reentry of a deported alien. He pled

guilty without a plea agreement.

      The presentence investigation report (PSR) determined the base offense level was

8. See USSG §2L1.2(a). It applied a four-level enhancement because Barcelo-Picaso

had previously been deported following a felony conviction.1 See USSG

§2L1.2(b)(1)(D). Applying a two-level downward adjustment for acceptance of

responsibility, see USSG §3E1.1, the total offense level was 10. With a Criminal History

Category of V, the advisory guideline range was 21 to 27 months imprisonment.

Barcelo-Picaso did not object to the PSR but did file a sentencing memorandum

requesting a sentence at the bottom of the guideline range. The government opposed that

request, claiming a sentence at the top of the guideline range was appropriate under the


      1
          USSG §2L1.2(b)(1) provides for an enhancement to a defendant’s base offense
level if he was previously deported following a felony conviction. The level of
enhancement (four, eight, twelve or sixteen) depends on the nature of the previous felony
conviction. The probation officer reviewed the elements of Arizona’s aggravated assault
statute and concluded it did not qualify for an enhancement greater than four levels.

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factors set forth in 18 U.S.C. § 3553(a), in particular, Barcelo-Picaso’s extensive criminal

history.

       Two days prior to sentencing, Barcelo-Picaso’s attorney filed a motion to

withdraw the guilty plea due to Barcelo-Picaso’s attempts to obtain United States

citizenship.2 He claimed Barcelo-Picaso was adopted in 1991 by his American stepfather

but his stepfather died before he could obtain legal residency or citizenship. At

sentencing, counsel reiterated Barcelo-Picaso’s desire to withdraw his guilty plea because

it could jeopardize his ability to obtain citizenship. Barcelo-Picaso himself argued for the

first time that his adoption papers conferred citizenship upon him retroactive to 1985, the

year his mother and stepfather married. The district court denied the motion, concluding

there were no just or reasonable grounds for Barcelo-Picaso to withdraw his plea.

Proceeding to sentencing, the court determined the PSR had correctly calculated the

advisory guideline range. After considering the § 3353(a) factors, the court sentenced

Barcelo-Picaso to 21 months imprisonment.

                                    II. DISCUSSION

       Under Anders, “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. With his motion to withdraw, counsel must submit “a brief

referring to anything in the record that might arguably support the appeal.” Id. The


       2
        Counsel filed the motion to withdraw guilty plea pursuant to Anders. At
sentencing, he clarified he filed the motion at his client’s urging but he was unable to
locate any legal authority to support it.

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defendant must have the opportunity to review counsel’s brief and “raise any points that

he chooses” to the court. Id. The court must then conduct a full examination of the

record to determine “whether the case is wholly frivolous.” Id. If the court concludes the

case is frivolous, it may grant counsel’s motion to withdraw and dismiss the appeal. Id.;

see also United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005) (discussing

Anders procedure).

       In the Anders brief, counsel identifies only one issue which might arguably

support an appeal: “[Barcelo-Picaso’s] step-father, a United States citizen, adopted [him]

while [he] was still a minor. Unfortunately, [the] step-father died before [Barcelo-Picaso]

could become a naturalized United States citizen.” (Appellant’s Opening Br. at 3.)

Barcelo-Picaso raised this issue in the district court as grounds to support his motion to

withdraw his guilty plea.

       A defendant may withdraw a guilty plea before sentencing if he “can show a fair

and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). We

consider seven factors to determine if he has satisfied that burden: “(1) whether the

defendant has asserted his innocence, (2) prejudice to the government, (3) delay in filing

defendant’s motion, (4) inconvenience to the court, (5) defendant’s assistance of counsel,

(6) whether the plea is knowing and voluntary, and (7) waste of judicial resources.”

United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir. 1993). We review the denial of a

motion to withdraw a guilty plea for abuse of discretion. United States v. Wade, 940 F.2d

1375, 1376 (10th Cir. 1991). “Although a motion to withdraw a plea prior to sentencing


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should be freely allowed, we will not reverse a district court’s decision unless the

defendant can show that the court acted unjustly or unfairly.” United States v. Hamilton,

510 F.3d 1209, 1213-14 (10th Cir. 2007) (quotations omitted).

        Barcelo-Picaso has failed to make the requisite showing. He admitted guilt at his

change of plea hearing. While he later claimed he was a citizen of the United States via

his 1991 adoption (i.e., he is actually innocent), he could not provide any legal authority

supporting that claim. Indeed, it appears the adoption was only a step in his attempt to

become a citizen; he did not in fact obtain citizenship because his stepfather died before

he could do so. Barcelo-Picaso also delayed filing his motion to withdraw until two days

before sentencing, even though he admitted he was aware of the argument supporting his

motion to withdraw six months prior to sentencing. He never informed the magistrate

judge who took his guilty plea that he had reservations about pleading guilty.

Additionally, he told the district court he was satisfied with his counsel’s performance

and the magistrate judge properly informed him of his rights during the change of plea

colloquy. There is no indication that Barcelo-Picaso’s plea was not freely or voluntarily

made.

        After a careful review of the record, we agree with counsel—there are no arguably

meritorious claims. We GRANT counsel’s motion to withdraw and DISMISS this

appeal.

                                          Entered by the Court:

                                          Terrence L. O’Brien
                                          United States Circuit Judge

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