                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 August 27, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 09-2020
 v.                                           (D.Ct. No. 2:08-CR-00831-JAP-1)
                                                          (D. N.M.)
 OSCAR MANUEL ZAPIEN-JAIME,

          Defendant-Appellant.
                      _______________________________

                                ORDER AND JUDGMENT *


Before BARRETT, ANDERSON, and BRORBY, Circuit Judges.



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

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



      Appellant Oscar Manuel Zapien-Jaime pled guilty to one count of unlawful

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

      *
         This order and judgment is not binding precedent except under the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.
violation of 8 U.S.C. § 1326(a) and (b). The district court sentenced Mr. Zapien-

Jaime to thirty-six months imprisonment – ten months below the low end of the

advisory United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) range

of forty-six to fifty-seven months imprisonment. Although Mr. Zapien-Jaime

appeals his conviction and sentence, his attorney has filed an Anders brief and a

motion to withdraw as counsel. 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 April 22, 2008, a one-count indictment issued charging Mr. Zapien-

Jaime with unlawful reentry of a deported alien subsequent to an aggravated

felony conviction, in violation of 8 U.S.C. § 1326(a) and (b). On August 21,

2008, Mr. Zapien-Jaime pled guilty, without the benefit of a plea agreement,

before a United States Magistrate. In pleading guilty, the record reflects Mr.

Zapien-Jaime waived his right to go to trial and participated in a Rule 11 colloquy

during which, in part, he was advised of his constitutional rights and

acknowledged he understood the nature of the offense charged, the maximum

possible penalties for the offense charged, and the consequences of entering a




                                         -2-
guilty plea. 1 He also provided affirmation as to the factual predicate supporting

his plea and the elements of the crime charged and answered questions on his

physical and mental condition and any influence of alcohol, drugs, or medication.

Based on his answers to the questions posed, the United States Magistrate, as well

as the district court judge, found Mr. Zapien-Jaime’s plea was knowingly,

voluntarily, and intelligently made and accepted his guilty plea.



      After Mr. Zapien-Jaime pled guilty, a probation officer prepared a

presentence report which included facts surrounding Mr. Zapien-Jaime’s illegal

reentry into the country and calculated his sentence under the applicable 2007

Guidelines. The probation officer calculated the base offense level at 8, under

U.S.S.G. § 2L1.2(a), and added a sixteen-level adjustment, under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii), because Mr. Zapien-Jaime had been deported subsequent to

having been convicted of a felony offense involving a crime of violence for

      1
         Because neither Mr. Zapien-Jaime nor his counsel provided a copy of the
transcript of the plea hearing, we rely on Mr. Zapien-Jaime’s consent form
regarding entry of his plea before the United States Magistrate and the plea
minute sheet which contains information as to Mr. Zapien-Jaime’s plea and the
Rule 11 colloquy conducted. In addition, Mr. Zapien-Jaime’s appellate counsel
also represented Mr. Zapien-Jaime at the plea hearing, and therefore, we rely on
his representations “Mr. Zapien-Jaime knowingly, voluntarily and intelligently
entered a plea of guilty to the charge in the indictment” and that in representing
Mr. Zapien-Jaime on appeal he reviewed the “total record” to ascertain
meritorious issues. Apt. Br. at 1-2. Given Mr. Zapien-Jaime has offered no
evidence on appeal to indicate his plea was involuntarily or unknowingly given,
our reliance on the information provided is more than sufficient to make a
determination his plea was knowingly and voluntarily given.

                                        -3-
assaulting an officer with his vehicle when he struck a patrol car in an attempt to

flee from law enforcement. In addition, based on his acceptance of responsibility

for the offense of conviction, the probation officer included a three-level

reduction, for a total offense level of 21. A total offense level of 21, together

with a criminal history category of III, resulted in a Guidelines range of forty-six

to fifty-seven months imprisonment.



      Prior to sentencing, Mr. Zapien-Jaime filed a motion for a variance under

18 U.S.C. § 3553(a) for a below-Guidelines sentence of twenty-one months

imprisonment. In support, Mr. Zapien-Jaime contended the sixteen-level

enhancement over-represented his criminal history because his felony conviction

for assault of an officer occurred when he was under the influence of alcohol and

panicked when attempting to flee law enforcement, unintentionally striking a

patrol car. He also asserted he should receive a variance because of his personal

characteristics, including the fact he was still a young man (at the age of twenty-

seven) and, in addition, his single felony assault criminal conviction occurred at

the age of only twenty-three. In response, the government opposed his request for

a twenty-one-month sentence and, instead, recommended a sentence at the low

end of the Guidelines range.



      At the sentencing hearing before the district court, Mr. Zapien-Jaime

                                          -4-
agreed the statements of fact in the presentence report were true and correct and

no need for an evidentiary hearing existed. After the district court gave the

parties an opportunity to address the requested variance, it proposed a sentence of

thirty-six months would be sufficient but not greater than necessary to comply

with the purposes of 18 U.S.C. § 3553(a). The district court explained it based

the proposed sentence on: (1) its consideration of the nature and seriousness of

the instant offense, which involved no violence or weapons; (2) Mr. Zapien-

Jaime’s history and characteristics, including his serious offense of assault on an

officer; and (3) the fact his sentence would be twice as long as his longest prior

period of incarceration of one year and three months, thereby promoting respect

for the law, just punishment, and adequate deterrence.



       Mr. Zapien-Jaime next addressed the court, noting his mother was sick, he

needed to support his younger brother, he did not intend to assault anyone during

his prior offense, he had always worked, and he never got involved with drugs,

violence, or gangs. After Mr. Zapien-Jaime addressed the district court, it

imposed a thirty-six-month sentence, stating it had reviewed the presentence

report and considered the Guidelines applications and the factors under 18 U.S.C.

§ 3553(a). 2

       2
       Earlier during the proceeding, the district court also explicitly stated it
was adopting the factual findings in the presentence report and had considered
                                                                       (continued...)

                                         -5-
      After Mr. Zapien-Jaime filed a timely pro se notice of appeal, his appointed

counsel, who also represented him before the trial court, filed an Anders appeal

brief explaining that, after a conscientious examination of the record on appeal,

the appeal contained no meritorious issues and was wholly frivolous. See Anders,

386 U.S. at 744. In support, counsel pointed out Mr. Zapien-Jaime knowingly,

voluntarily, and intelligently entered a plea of guilty to the charge in the

indictment and received a sentence ten months below the low end of the advisory

Guidelines range, thereby implicating the validity of his conviction and the

reasonableness of his sentence. Pursuant to Anders, this court gave Mr. Zapien-

Jaime an opportunity to respond to his counsel’s Anders brief. See id. Mr.

Zapien-Jaime filed a response, asking for a reduced sentence because his mother

passed away and he needed to help his thirteen-year-old brother. The government

filed a notice of its intention not to file an answer brief in this appeal.



                                    II. Discussion

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

before us. See 386 U.S. at 744. The record provided on appeal suggests Mr.

Zapien-Jaime’s guilty plea was voluntarily, knowingly, and intelligently entered


      2
       (...continued)
Mr. Zapien-Jaime’s memorandum in favor of a variance, the government’s
response thereto, letters submitted on behalf of Mr. Zapien-Jaime, and his various
vocational certifications.

                                          -6-
and, further, that sufficient evidence supported both his plea and conviction, as

provided by the facts presented in the uncontested presentence report. Nothing

presented on appeal indicates otherwise. As to his sentence, we review for

reasonableness the sentence’s length, 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. Here, the district court considered Mr. Zapien-

Jaime’s request for a variant below-Guidelines sentence, together with the

sentencing factors in § 3553(a) and the advisory Guidelines, prior to granting the

requested variance. In so doing, it is clear the district court was presented with

the same family circumstances now raised on appeal, and nothing in the record

indicates it did not consider those circumstances in granting Mr. Zapien-Jaime’s

variant sentence. The district court then sentenced him to thirty-six months

imprisonment, which is ten months below the advisory Guidelines range of forty-

six to fifty-seven months imprisonment and is presumptively reasonable. See id.

at 1053-55. Under the circumstances presented, we have no reason to conclude

the sentence is unreasonable under the § 3553(a) factors, especially in light of the

fact Mr. Zapien-Jaime has not offered any additional nonfrivolous reasons

warranting a lower sentence.




                                         -7-
                                III. Conclusion

     For these reasons, no meritorious appellate issue exists. Accordingly, we

GRANT counsel’s motion to withdraw and DISMISS Mr. Zapien-Jaime’s appeal.



                                    Entered by the Court:

                                    WADE BRORBY
                                    United States Circuit Judge




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