                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                   May 20, 2011
                                 TENTH CIRCUIT                  Elisabeth A. Shumaker
                            __________________________              Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 10-3310
 v.                                           (D.C. No. 2:10-CR-20060-CM-1)
                                                          (D. Kan.)
 REFUGIO RODARTE-MORALES,
 a/k/a Jose Lopes-Morales,

          Defendant-Appellant.
                       ______________________________

                                ORDER AND JUDGMENT *


Before BARRETT, ANDERSON, and BRORBY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

submitted without oral argument.




      *
         This order and judgment is not binding precedent except under the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.
      After Appellant Refugio Rodarte-Morales pled guilty to one count of

unlawful reentry of a previously deported alien, the district court sentenced him

to twenty-four months imprisonment. Although Mr. Rodarte-Morales 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. 1

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 July 19, 2010, pursuant to a plea agreement, Mr. Rodarte-Morales pled

guilty to unlawful reentry of a previously deported alien in violation of 8 U.S.C.

§ 1326(a), with reference to 6 U.S.C. §§ 202(3), 202(4), and 557. As part of the

plea agreement, Mr. Rodarte-Morales stated he understood his guilty plea could

subject him to a maximum statutory punishment of twenty-four months

incarceration and that the district court would consider the United States

Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) when sentencing him. At the

plea hearing, the district court accepted Mr. Rodarte-Morales’s guilty plea,

finding it was freely, voluntarily, and intelligently made and that he admitted to

the essential elements of the crime charged.

      1
        While no separate motion was filed, in the Anders brief, Mr. Rodarte-
Morales’s counsel “respectfully requests that the Court allow Counsel to
withdraw from further representation of [Mr. Rodarte-Morales] in this matter.”

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      Thereafter, a probation officer prepared a presentence report calculating

Mr. Rodarte-Morales’s sentence under the applicable 2009 Guidelines. The

probation officer set the base offense level at 8, under U.S.S.G. § 2L1.2(a), and

added a twelve-level increase, under U.S.S.G. § 2L1.2(b)(1)(B), based on its

finding that Mr. Rodarte-Morales had a prior aggravated felony conviction for

delivery of cocaine for which he received a sentence of time served – from July

15, 2009, to November 17, 2009. Based on Mr. Rodarte-Morales’s acceptance of

responsibility, the probation officer also included a three-level reduction, for a

total offense level of 17. A total offense level of 17, together with a criminal

history category of V, resulted in a Guidelines range of forty-six to fifty-seven

months imprisonment. However, despite this calculation of his Guidelines range,

the probation officer determined Mr. Rodarte-Morales’s sentence should be

twenty-four months because he only pled guilty to a statutory maximum penalty

of two years.



      Although Mr. Rodarte-Morales did not object to the presentence report, the

government did, arguing a twenty-year maximum penalty and Guidelines range of

forty-six to fifty-seven months imprisonment should apply because Mr. Rodarte-

Morales illegally reentered the country following a previous aggravated felony

drug conviction. In response, the probation officer again noted Mr. Rodarte-

Morales was only advised of the two-year maximum penalty so his plea could

                                          -3-
only be knowingly, voluntarily, and intelligently entered with respect to a twenty-

four-month sentence.



      At his sentencing hearing held on November 15, 2010, Mr. Rodarte-

Morales presented no objections to the presentence report, and the government

withdrew its objection to a twenty-four-month sentence. After applying the

offense level of 17 to a lower criminal history category of IV, the district court

calculated the Guidelines range at thirty-seven to forty-six months imprisonment;

neither party objected to this calculation. Instead, Mr. Rodarte-Morales sought a

variant sentence of only twelve months and one day, on grounds: (1) his mother

died when he was fourteen and he had no family life since then; (2) he is illiterate

and has primarily worked in agriculture; (3) he is a chronic alcoholic; (4) his

criminal history is commensurate with substance abuse and primarily includes

misdemeanor crimes of trespassing, marijuana possession, and minor assaults; and

(5) his recent cocaine conviction was uncharacteristic for him, inconsistent with

the rest of his criminal history, and resulted in only a short term of imprisonment,

so that a twelve-level enhancement overestimates its severity. In response, the

government argued Mr. Rodarte-Morales’s criminal history of thirty-five

convictions over thirty years showed his total disrespect for the law and was

vastly under-represented because thirty-one of those convictions were not used to

calculate his criminal history score.

                                          -4-
      In imposing a twenty-four-month sentence, the district court explicitly

stated that it had considered the presentence report, the parties’ statements, the

advisory nature of the Guidelines, and the sentencing factors in 18 U.S.C.

§ 3553(a). In considering the § 3553(a) factors, the district court stated it

considered the nature and circumstance of the offense and Mr. Rodarte-Morales’s

history and characteristics, including his lengthy criminal record over a thirty-

year span, numerous alcohol-related and marijuana offenses, and his recent

aggravated felony conviction for delivering cocaine. It also recognized Mr.

Rodarte-Morales entered into a plea agreement in which the maximum term of

imprisonment of which he was informed was only twenty-four months and stated

that in light of that circumstance, as well as the sentencing factors, it believed a

twenty-four-month sentence was appropriate to comply with those factors. It

further stated:

      [J]ust so the record’s clear in regards to what the court has done on
      its sentence, the court has recognized that it has the discretion to
      make a variance in regards to the sentence, and in fact has done so in
      regards to the 24 months being lower than the guideline range of 37
      to 46 months.



      Following Mr. Rodarte-Morales’s timely pro se notice of appeal, his

appointed counsel filed an Anders appeal brief explaining no meritorious issues

exist on appeal and requesting permission to withdraw as counsel. See Anders,

386 U.S. at 744. More specifically, he points out Mr. Rodarte-Morales’s sentence

                                          -5-
of twenty-four months does not exceed the statutory maximum penalty of which

he was advised. He also states the district court did not commit any procedural

error in calculating his sentence, and that the twenty-four-month sentence is

substantively reasonable, given it is thirteen months below the low end of the

Guidelines range of thirty-seven to forty-six months imprisonment. In so

asserting, his counsel also notes that after the probation officer unearthed Mr.

Rodarte-Morales’s prior conviction for an aggravated felony, the potential

statutory maximum increased to twenty years punishment and his advisory

Guidelines range increased to thirty-seven to forty-six months imprisonment. As

a result, he acknowledges Mr. Rodarte-Morales could have been put in the

difficult position of withdrawing his plea and facing a lengthier sentence had the

government not withdrawn its objection to the presentence report, recommending

a twenty-four-month sentence based on Mr. Rodarte-Morales’s plea agreement.



      Pursuant to Anders, this court gave Mr. Rodarte-Morales an opportunity to

respond to his counsel’s Anders brief. See 386 U.S. at 744. His counsel also

advised he would assist Mr. Rodarte-Morales with any such response. However,

Mr. Rodarte-Morales failed to file a response. The government has filed a notice

of its intent not to file an answer brief in this appeal.




                                           -6-
                                   II. Discussion

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

before us. See id. Nothing in the record indicates Mr. Rodarte-Morales’s plea

was not freely, voluntarily, and intelligently made for the purpose of challenging

his conviction. As to his sentence, we review it for reasonableness 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. Nothing in the record

indicates the district court improperly calculated the offense level and criminal

history category or otherwise improperly calculated Mr. Rodarte-Morales’s

sentence. After properly calculating the sentence, the district court sentenced him

to twenty-four months imprisonment – well below the advisory Guidelines range,

which is entitled to a rebuttable presumption of reasonableness. See id. at 1053-

55. Neither Mr. Rodarte-Morales nor his counsel has presented any nonfrivolous

reason on appeal warranting a lower sentence. See id.




                                         -7-
                                III. Conclusion

     For these reasons, no meritorious appellate issue exists for our review on

direct appeal. Accordingly, we GRANT counsel’s motion to withdraw and

DISMISS Mr. Rodarte-Morales’s appeal.



                                     Entered by the Court:

                                     WADE BRORBY
                                     United States Circuit Judge




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