                                                                        F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        April 24, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                     Nos. 06-2171
                                                              06-2172
          v.                                           (D. New M exico)
 M IGUEL A NGEL TORR ES-                           (D.C. Nos. CR-99-437-JP
 V A RELA,                                            and CR -06-384-JP)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before TACH A, Chief Circuit Judge, A ND ER SO N and BROR BY, 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.




      *
        This order and judgment is not binding precedent except under the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.
      W hile on supervised release following his conviction for a prior drug

offense, defendant/appellant M iguel Angel Torres-Varela pled guilty to the crime

of reentry by a deported alien previously convicted of an aggravated felony, in

violation of 8 U.S.C. § 1326(a)(1), (2) and (b)(2). He was also charged with

violating the conditions of his supervised release. Torres-V arela w as sentenced to

forty-six months’ imprisonment, followed by three years of supervised release, on

the reentry charge and three months for the violation of the conditions of

supervised release, to be served consecutively to the forty-six month sentence. In

separate appeals w hich we consolidate for purposes of disposition, Torres-V arela

endeavors to appeal both those sentences. In appeal No. 06-2171, Torres-V arela

seeks to appeal his sentence for violation of the conditions of his supervised

release; in appeal No. 06-2172, he seeks to appeal his sentence for illegal reentry.

      Torres-Varela’s appointed counsel, Joel M . Carson III, has filed an Anders

brief in each appeal and has moved to withdraw as counsel. See Anders v.

California, 386 U.S. 738 (1967). Torres-Varela has not filed a response in either

appeal, and the government has declined to file briefs. W e therefore base our

conclusions on counsel’s briefs and our own review of the record in each case.

For the reasons set forth below, we agree with M r. Carson that the records in

these cases provide no nonfrivolous basis for an appeal, and we therefore grant

his motions to w ithdraw and dismiss these appeals.




                                         -2-
                              APPEAL NO . 06-2171

      1. Background

      In February 2002, Torres-Varela was sentenced to forty-six months’

imprisonment, followed by three years of supervised release, for possession with

intent to distribute more than fifty kilograms of marijuana. After he completed

his term of imprisonment, Torres-Varela was deported and his term of supervised

release commenced. One of the conditions of his supervised release prohibited

him from reentering the United States without prior approval from the Attorney

General. Torres-Varela’s supervised release was scheduled to expire on

December 17, 2005.

      On December 9, 2005, United States authorities apprehended Torres-V arela

in the United States and charged him with reentry by a deported alien previously

convicted of an aggravated felony, in violation of 8 U.S.C. § 1326(a)(1), (2) and

(b)(2). This arrest caused Torres-Varela to be charged with violating the terms of

his supervised release as well. Accordingly, the United States Probation Office

filed a petition to have Torres-Varela’s supervised release revoked. On M ay 25,

2006, the district court held a hearing on the supervised release violation, at

which Torres-Varela admitted to violating the condition of his supervised release

prohibiting him from reentering the United States without prior approval from the

Attorney General.




                                         -3-
      The court then proceeded to sentencing for the violation of the supervised

release condition. The court noted that the most serious violation was a Grade B

violation under the advisory United States Sentencing Commission, Guidelines

M anual (“USSG ”), Chapter 7, and that, with a criminal history category of IV, the

advisory Guideline sentencing range w as twelve to eighteen months. The court

then sentenced Torres-Varela to three months’ imprisonment, to be served

consecutively to the sentence imposed for Torres-Varela’s illegal reentry

violation. The court explained that the three-month term was to run consecutively

“to impress upon M r. Torres that the concept of supervised release and violation

of conditions of supervised release does have a meaning and a consequence.” Tr.

of Violation of Supervised Release Hr’g at 12, R. Vol. III. Torres-V arela

endeavors to appeal that sentence.

      2. Discussion

      Under Anders, “counsel [may] request permission to withdraw [from an

appeal] where counsel conscientiously examines a case and determines that any

appeal would be wholly frivolous.” United States v. Calderon, 428 F.3d 928, 930

(10th Cir. 2005) (citing Anders, 386 U.S. at 744). This process requires counsel

to:

      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

                                         -4-
      such an examination that the appeal is frivolous, it may grant
      counsel’s motion to withdraw and may dismiss the appeal.

Id. (citing Anders, 386 U.S. at 744). As indicated, Torres-Varela’s counsel has

filed his Anders brief in this appeal, to which neither Torres-Varela nor the

government has responded.

      W e agree with counsel that there is no nonfrivolous issue related to Torres-

Varela’s three-month sentence for violating the terms of his supervised release

which could form the basis for an appeal. Under 18 U.S.C. § 3583(e)(3) and Fed.

R. Crim. P. 32.1(b), the district court may revoke a person’s supervised release

when that person violates a condition of his or her supervised release. See United

States v. Cordova, 461 F.3d 1184 (10th Cir. 2006). Following that revocation, the

district court may sentence the defendant to a term of imprisonment. Thus, there

is no argument to be made that the court erred in revoking Torres-Varela’s

supervised release and sentencing him to a term of imprisonment.

      Nor is there any nonfrivolous argument to be made about the length of the

sentence imposed. “In imposing a sentence following revocation of supervised

release, a district court is required to consider both Chapter 7’s policy statements,

as well as a number of factors provided in 18 U.S.C. § 3553(a).” Cordova, 461

F.3d at 1188; see also 18 U.S.C. §§ 3583(e), 3584(b). The § 3553(a) factors

include:

      [T]he nature and circumstances of the offense; the history and
      characteristics of the defendant; the need for the sentence imposed to

                                          -5-
      afford adequate deterrence, protect the public, and provide the
      defendant with needed educational or vocational training, medical
      care or other correctional treatment in the most effective manner;
      pertinent guidelines; pertinent policy statements; the need to avoid
      unwanted sentence disparities; and the need to provide restitution.

United States v. Contreras-M artinez, 409 F.3d 1236, 1242 n.3 (10th Cir. 2005).

The court, however, “is not required to consider individually each factor listed in

§ 3553(a),” nor must it “recite any magic w ords to show us that it fulfilled its

responsibility to be mindful of the factors that Congress has instructed us to

consider.” U nited States v. Rodriguez-Quintanilla, 442 F.3d 1254, 1258-59 (10th

Cir. 2006) (internal quotations omitted). Furthermore, “[a] district court has

discretion to impose consecutive sentences after the revocation of supervised

release.” C ordova, 461 F.3d at 1189. After carefully reviewing the record, we

find the three-month sentence imposed here, which w as below the advisory

Guideline range, was clearly reasoned and reasonable. No nonfrivolous basis for

appealing it exists.



                               APPEAL NO . 06-2172

      1. Background

      Torres-Varela was charged with illegal reentry by a deported alien

previously convicted of an aggravated felony, in violation of 8 U.S.C.

§ 1326(a)(1), (2) and (b)(2). He waived indictment and, on M arch 1, 2006,

entered into a plea agreement pursuant to Fed. R. Crim. P. 11(c)(1)(C). Under the

                                          -6-
plea agreement, the government agreed that Torres-V arela w ould be entitled to

downward departures sufficient to allow for a Guideline offense level of nineteen.

The government further agreed to recommend a sentence at the “lower end of the

sentencing guideline range.” Plea Agreement at 6, R. Vol. I at doc. 15. Torres-

Varela agreed not to appeal “any sentence within the statutory range applicable to

the statute(s) of conviction.” Id. at 5. He further agreed he would not pursue a

collateral attack pursuant to 28 U.S.C. § 2255, except on the grounds of

ineffective assistance of counsel.

      In preparation for sentencing, the United States Probation Office prepared a

presentence report (“PSR”), which calculated an advisory Guideline sentencing

range of forty-six to fifty-seven months, based upon the offense level of nineteen,

pursuant to the plea agreement, and Torres-Varela’s criminal history category of

IV. 1 Torres-Varela admitted that all of the factual statements contained in the

PSR were correct. The district court then adopted the factual statements in the

PSR and, in accordance with the plea agreement, sentenced Torres-V arela to

forty-six months. As Torres-Varela’s counsel acknowledged, “we entered a[]

[plea agreement under Fed. R. Crim. P.] 11(c)(1)(C), and . . . that would be the

sentence in accordance with the plea.” Tr. of Sentencing Hr’g at 4, R. Vol. IV.



      1
        The PSR noted that Torres-Varela’s actual total offense level under the
Guidelines was twenty-one. W ith a criminal history category of IV, a total
offense level of twenty-one would have yielded an advisory Guidelines range of
fifty-seven to seventy-one months.

                                         -7-
The court stated that, in imposing the sentence, it had “considered the sentencing

guideline applications, and the factors set forth in 18 [U.S.C. §] 3553(a) 1 through

7.” Id. at 5.

       2. Discussion

       W e agree with counsel that there is no nonfrivolous basis upon which

Torres-Varela can challenge his forty-six month sentence. W e now review

sentences imposed for reasonableness. United States v. Kristl, 437 F.3d 1050,

1053 (10th Cir. 2006) (per curiam). Reasonableness “necessarily encompasses

both the reasonableness of the length of the sentence, as well as the method by

which the sentences w as calculated.” Id. at 1055. Torres-V arela’s sentence is

both procedurally and substantively reasonable. The district court specifically

stated that it had reviewed the applicable sentencing factors contained in 18

U.S.C. § 3553(a). The sentence was at the low end of the advisory Guideline

range. Furthermore:

       Under Federal Rule of Criminal Procedure 11(c)(1)(C), parties may,
       in structuring a guilty plea, “agree that a specific sentence or
       sentencing range is the appropriate disposition of the case, . . . (such
       a recommendation or request binds the court once the court accepts
       the plea agreement).” W here a defendant agrees to and receives a
       specific sentence, he may appeal the sentence only if it was (1)
       imposed in violation of the law, (2) imposed as a result of an
       incorrect application of the Guidelines, or (3) is greater than the
       sentence set forth in the plea agreement. Otherwise, the Court lacks
       jurisdiction over the appeal.




                                          -8-
Calderon, 428 F.3d at 932 (quoting United States v. Silva, 413 F.3d 1283, 1284

(10th Cir. 2005) (further quotations and citations omitted)).

      Torres-Varela received the sentence to which he agreed in the plea

agreement, inasmuch as his sentence was calculated based upon an offense level

of nineteen, and he was sentenced at the low end of the advisory Guideline range.

Having concluded that the sentence is reasonable, was imposed following a

correct application of the Guidelines and reflects the sentence agreed to in the

plea agreement, we lack jurisdiction over any other basis for an appeal.

      The only remaining issue Torres-V arela’s counsel avers that Torres-V arela

wishes to raise is ineffective assistance of counsel. “Ineffective assistance of

counsel claims ‘should be brought in collateral proceedings, not on direct appeal.

Such claims brought on direct appeal are presumptively dismissible, and virtually

all will be dismissed.’” Id. at 931 (quoting United States v. Galloway, 56 F.3d

1239, 1240 (10th Cir. 1995)); see also M assaro v. United States, 538 U.S. 500,

504-05 (2003) (“In light of the way our system has developed, in most cases a

motion brought under § 2255 is preferable to direct appeal for deciding claims of

ineffective-assistance.”). Thus, Torres-Varela’s ineffective assistance of counsel

claim does not provide a basis for this appeal.




                                         -9-
                                C ON CLU SIO N

      For the foregoing reasons, we GRANT counsel’s motions to withdraw from

both of these cases and we DISM ISS these appeals.

                                             ENTERED FOR THE COURT


                                             Stephen H. Anderson
                                             Circuit Judge




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