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

                                 TENTH CIRCUIT                    June 2, 2015
                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court
    UNITED STATES OF AMERICA,

         Plaintiff - Appellee,

    v.
                                                   No. 14-6233
                                          (D.C. No. 5:14-CR-00246-HE-1)
    RAFAEL CERVANTES-
                                                 (W.D. Oklahoma)
    VALERIANO, a/k/a Lorenzo
    Sanchez, a/k/a Arturo Cervantes,

         Defendant - Appellant.




                           ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, MURPHY and BACHARACH, Circuit Judges.


         Mr. Rafael Cervantes-Valeriano was convicted of illegal reentry. For

sentencing, the guideline range was 57 to 71 months, and the district court




*
      The Court has determined that oral argument would not materially
aid our consideration of the appeal. See Fed. R. App. P. 34(a)(2); 10th Cir.
R. 34.1(G). Thus, we have decided the appeal based on the briefs.

     Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
varied downward 1 to sentence Mr. Cervantes-Valeriano to 56 months in

prison. Mr. Cervantes-Valeriano appealed, challenging only the length of

his sentence.

     Mr. Cervantes-Valeriano’s appointed counsel filed a brief invoking

Anders v. California, 386 U.S. 738 (1967), and moving to withdraw from

representation based on the absence of any arguably meritorious appeal

points. See Anders v. California, 386 U.S. 738 (1967). We conclude that

the only grounds for appeal would be frivolous. Thus, we grant the motion

to withdraw and dismiss the appeal.

I.   Anders

     Under Anders v. California, attorneys can seek leave to withdraw

from an appeal when they conscientiously examine a case and determine

that an appeal would be frivolous. Anders v. California, 386 U.S. 736, 744

(1967). To obtain leave to withdraw, an attorney must

     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.

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


1
      The court varied downward to give Mr. Cervantes-Valeriano credit
for a month he had spent in immigration custody.
                                      2
       Defense counsel filed a brief, and Mr. Cervantes-Valeriano bypassed

the opportunity to file his own brief. In these circumstances, we base our

decision on (1) the brief filed by defense counsel, and (2) the record on

appeal.

II.    Standard of Review

       We have nothing to suggest an error in the guideline calculation, and

the sentence fell below the guideline range. As a result, the sentence is

presumptively reasonable in length. See United States v. Trent, 767 F.3d

1046, 1051 (10th Cir. 2014). The presumption is rebuttable, but Mr.

Cervantes-Valeriano bears the burden of showing that the sentence is

unreasonable under the sentencing factors in 18 U.S.C. § 3553(a). United

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

III.   Reasonableness of the Sentence

       To attempt that showing, Mr. Cervantes-Valeriano could argue that

(1) the guideline range unfairly double counts prior convictions, (2) an

enhancement under § 2L1.2(b)(1)(A) lacks empirical support, and (3) the

court should have applied a downward variance. These arguments would be

frivolous.

       We have already upheld the same guideline against a similar

challenge involving double counting of prior convictions. United States v.

Algarate-Valencia, 550 F.3d 1238, 1245 (10th Cir. 2008).



                                      3
     We have also rejected a challenge to the enhancement under

§ 2L1.2(b)(1)(A), holding that it is valid even if the Sentencing

Commission did not provide empirical support. United States v. Alvarez-

Bernabe, 626 F.3d 1161, 1166 (10th Cir. 2010).

     Finally, the district court considered the sentencing factors in 18

U.S.C. § 3553(a), stating that the guideline calculation was reasonable “in

terms of evaluating the seriousness of the offense,” “the need to deter [Mr.

Cervantes-Valeriano] from the prospect of returning illegally again,” and

“the need to protect the public from the risk of further crimes.” Sentencing

Tr. at 10-12. We have no reason to question this explanation.

     No court could characterize the sentence as unreasonable. A s a result,

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


                                   Entered for the Court



                                   Robert E. Bacharach
                                   Circuit Judge




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