                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                October 25, 2007
                                                     Elisabeth A. Shumaker
                      UNITED STATES CO URT O F APPEALS Clerk of Court

                                   TENTH CIRCUIT



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

          Plaintiff-Appellee,
                                                       No. 07-2037
 v.
                                                 (D.C. No. CR 06-2189 JP)
                                                        (D .N.M .)
 ED U A RDO ESPA RZA -ESTR ADA,

          Defendant-Appellant.



                                OR DER AND JUDGM ENT *


Before BR ISC OE, EBEL, and M cCO NNELL, Circuit Judges.


      Defendant-Appellant Eduardo Esparza-Estrada (“Esparza”) pled guilty to

re-entering the United States illegally after a previous deportation. See 8 U.S.C.

§ 1326(a)(1)-(2), (b)(2). The district court sentenced Esparza to a 46-month term

of imprisonment. Esparza appeals, arguing that the sentence is unreasonable.

Specifically, Esparza contends that the presentencing report (“PSR”) prepared by




      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 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not binding precedent, except under the doctrines of law of the case, res judicata,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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
the U.S. Probation Office overstated his criminal history and that the sentencing

judge failed to correct this overstatement. He also claims the judge ignored his

reason for returning to the United States, namely to earn money to send to his

mother in M exico. Esparza’s counsel, however, filed a brief stating that she been

unable to discern any non-frivolous grounds for appeal. See Anders v. California,

386 U.S. 738 (1967). Having independently reviewed the record, we disagree

with Esparza’s counsel. Nonetheless, we affirm the sentence because the

sentencing judge’s sole error was not a plain error and the sentence is

substantively reasonable. 1

I.    Background

      Esparza is a M exican citizen. Prior to the instant proceedings, he had only

two brushes with the law in the United States. First, he was arrested for shoving

the mother of his children to the ground from his truck in November 2004. 2

Second, that same month, Esparza was involved in a “road rage” incident in

Glenwood Springs, Colorado. Esparza claims that another man pursued his

vehicle until Esparza pulled over. The other man then got out of his car with a




      1
          As such, we also GRANT defense counsel’s motion to withdraw.
      2
       The Probation Office was unable to locate court records clarifying the
outcome of this arrest. Esparza’s PSR does note, however, that the woman was
not injured.

                                        -2-
knife and advanced towards Esparza. 3 Esparza, a carpenter by training, grabbed a

hamm er from his truck and hit the man in the head with the hammer, fracturing

the man’s skull.

      As a result of this incident, on August 11, 2005, Esparza pled guilty to

violating Colo. Rev. Stat. § 18-3-206, which states that “[a] person comm its the

crime of menacing if, by any threat or physical action, he or she knowingly places

or attempts to place another person in fear of imminent serious bodily injury.”

Criminal menacing, a Class 5 felony, is punishable by up to three years in

custody. By the time he pled guilty, Esparza had spent nearly nine months in jail.

The judge sentenced him to ninety days, crediting his time served, and two years

of probation. Because he had already served his time, Esparza was deported from

the United States to M exico in early September 2005.

      Nearly a year to the day after his Colorado conviction, U.S. Border Patrol

agents apprehended Esparza in the desert near Columbus, New M exico.

Immigration records revealed that Esparza had previously been deported after his

Colorado conviction and had not received permission to re-enter the United

States. W ithout the benefit of a plea agreement, Esparza pled guilty to re-



      3
        The victim offered a markedly different account of the incident, claiming
that Esparza attacked him without warning outside a restaurant. Esparza’s
sentencing memorandum notes that the police followed up on both accounts; they
discovered blood at the scene Esparza led them to and nothing at the restaurant.
Furthermore, the bouncers at the restaurant stated that if there had been an
altercation, they would have known about it.

                                        -3-
entering illegally after a previous deportation. See 8 U.S.C. § 1326(a)(1)-(2),

(b)(2).

      Esparza’s PSR stemming from this conviction factored in his previous

conviction for a violent felony, the Colorado menacing conviction. See U.S.S.G .

§ 2L1.2(a) (base offense level); U.S.S.G. § 2L1.2(b)(1)(A)(ii) (enhancement).

The PSR credited Esparza for accepting responsibility for his crime of re-entry.

See U.S.S.G. § 3.E1.1. In calculating his criminal history category, the Probation

Office noted that Esparza was still under a criminal justice sentence – probation

for the menacing conviction – and that he had re-entered less than two years after

his release from custody. W hen combined w ith his earlier conviction, these

factors set Esparza’s criminal history category at III. As such, the advisory

guideline sentencing range was 46 to 57 months in prison. The Probation Office

further noted that nothing in Esparza’s file “would take him away from the

heartland of cases of similarly situated defendants.”

      At his sentencing hearing, Esparza assented to the PSR’s statement of facts.

The judge acknowledged that he had considered Esparza’s sentencing

memorandum and attachment relating to the menacing incident, which maintained

that Esparza hit the man w ith a hammer in self-defense. After expressly noting

that he had considered Esparza’s claims, the sentencing judge concluded that the

Probation Office “correctly determined that the C riminal History Category of III

does not significantly overrepresent [sic] [Esparza’s] criminal history . . . .”

                                         -4-
      Accordingly, the judge continued:

      The defendant has also made a request for a sentence under 18 United
      States Code Section 3553(a) independent of the guidelines, but I don’t
      see this as a case that is exceptional in any particular way that should
      take it out of guideline sentencing, although that is discretionary, and
      I acknowledge that. I really feel that it’s appropriate to impose a
      guideline sentence in this case.

The judge then sought a response from Esparza’s counsel. Counsel argued that

the hammer incident misrepresented Esparza’s character and that his ninety-day

sentence for that incident manifested the Colorado court’s acceptance of

Esparza’s self-defense argument. The judge noted his concern about the

“evidence of violence” on the record. Specifically, the court referred to Esparza’s

other brush with the law – his arrest for shoving a woman out of his truck.

      Having examined these issues on the record, the sentencing judge indicated

that he intended to impose a sentence at the bottom of the guideline range. H e

justified this decision by noting, “I don’t think this case is so unusual that it

should be sentenced under 18 United States Code section 3553(a) outside of the

guidelines which are presumptively correct.” (emphasis added) Esparza’s counsel

objected only to the sentencing judge’s acceptance of Esparza’s criminal history

category; she did not lodge an objection to the court’s loose language stating that

the “guidelines . . . are presumptively correct.”

II.   Discussion




                                          -5-
      Esparza’s counsel filed an Anders brief, thereby triggering our obligation to

conduct independently “a full examination of all the proceeding[s] to decide

whether the case is wholly frivolous.” United States v. Snitz, 342 F.3d 1154,

1158 (10th Cir. 2003) (quotations omitted). Because of the sentencing court’s

cryptic suggestion that the guidelines are “presumptively correct,” we conclude

that Esparza’s appeal is not entirely frivolous. However, for the reasons stated

below, Esparza cannot prevail on his non-frivolous grounds of appeal.

A. Standard of Review

      W e review a sentence imposed by the district court for its

“reasonableness.” United States v. Booker, 543 U.S. 220, 261-62 (2005); United

States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006). As such, we set aside a

sentence only “if it is procedurally or substantively unreasonable.” United States

v. Geiner, 498 F.3d 1104, 1107 (10th Cir. 2007); United States v. Cage, 451 F.3d

585, 591 (10th Cir. 2006). W e presume the sentence is reasonable if it falls

within the sentencing guidelines range. Kristl, 437 F.3d at 1054.

      The Supreme Court has ratified the appellate presumption of

“reasonableness” because the sentence rests on the reasoned judgment of both the

Commission – as incorporated into the sentencing guidelines – and the sentencing

judge. See Rita v. United States, 127 S. Ct. 2456, 2463 (2007). However, as the

Rita Court clarified, a district court errs when it applies a presumption of

reasonableness to a sentence in the advisory guidelines range. United States v.

                                         -6-
Conlan, No. 06-1510, 2007 W L 2538047 *2 (10th Cir. Sept. 6, 2007); United

States v. Begay, 470 F.3d 964, 977 (10th Cir. 2006), cert. granted by No. 06-

11543, 2007 W L 1579420 (Sept. 25, 2007).

1. Procedural Reasonableness

      A sentence is procedurally reasonable if it “reflects the sentencing court’s

calculation of the applicable Guidelines range and its application of the § 3553(a)

factors.” Geiner, 498 F.3d at 1107; United States v. Lopez-Flores, 444 F.3d 1218,

1220 (10th Cir. 2006) (noting that procedural reasonableness component centers

on the method by which the court calculated the sentence).

      At Esparza’s sentencing hearing, the court stated that the guidelines are

“presumptively correct.” This suggests that the court may have impermissibly

invoked the appellate presumption of reasonableness.    See Begay, 470 F.3d at

977. Clearly, this calls into question the sentencing court’s method of calculating

Esparza’s sentence.

      Although Esparza’s counsel argued for a sentence below the guidelines

range, she failed to object to the sentencing judge’s cryptic statement. “[W]here a

defendant raises no contemporaneous objection to the court’s” method for

calculating the sentence, “we may reverse the district court’s judgment only in the

presence of plain error.” United States v. Cereceres-Zavala, No. 05-2191, 2007

W L 2421755 *4 (10th Cir. Aug. 28, 2007); United States v. Romero, 491 F.3d

1173, 1177 (10th Cir. 2007). A plain error is present “only when there is (1)

                                        -7-
error, (2) that is plain, (3) which affects substantial rights, and (4) which

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Romero, 491 F.3d at 1178.

      Critically, an error does not affect substantial rights unless it is prejudicial;

that is, unless the error altered the sentencing outcome. Id. (citing United States

v. Trujillo-Terrazas, 405 F.3d 814, 819 (10th Cir. 2005)). The party that failed to

preserve an objection bears the burden of establishing prejudice by showing a

“reasonable probability” that “but for” the error the result would have been

different. Trujillo-Terrazas, 405 F.3d at 819; see also United States v. Olano, 507

U.S. 725, 734 (1993). Even where a party survives this prong, the test’s final

hurdle ensures that the plain error exception is “used sparingly, solely in those

circumstances in which a miscarriage of justice would otherwise result.” United

States v. Toro-Pelaez, 107 F.3d 819, 827 (10th Cir. 1997).

      Here, the sentencing judge’s comment may well have been a slip. But to

the extent that this belief moored him to the guidelines range, it would indeed

constitute error that is “clear or obvious” under Begay. See Trujillo-Terrazas,

405 F.3d at 818. The remainder of the hearing transcript, however, suggests that

the error (if indeed one was made) was not prejudicial. Prior to the comment, the

sentencing judge had stated on the record: “I don’t see this as a case that is

exceptional in any particular way that should take it out of guideline sentencing,

although that is discretionary, and I acknowledge that.” The judge continued on

                                          -8-
to note that “I really feel that it’s appropriate to impose a guideline sentence in

this case.”

      M oreover, he referenced the § 3553(a) factors and undertook a thorough

investigation of Esparza’s PSR and sentencing memorandum. Although the judge

decided to impose a sentence at the bottom of the guidelines range, little on the

record betrays any indication that he felt compelled to do so. See Rita, 127 S. Ct.

at 2469 (“The judge then simply found these circumstances insufficient to warrant

a sentence low er than the G uidelines range . . .”).

      Of course, it is Esparza’s burden to show that the error w as prejudicial.

Trujillo-Terrazas, 405 F.3d at 819. Because his counsel filed an Anders brief,

Esparza has not had the opportunity to make this showing. However, it would be

futile to force Esparza to make this showing because he could not, in any case,

surmount the fourth prong of the “plain error” test.

      To say that the district court’s comm ent amounted to a “miscarriage of

justice,” see Toro-Pelaez, 107 F.3d at 827, would truly make a mountain out of a

molehill. All indications in the record suggest the sentencing judge simply mis-

spoke. As discussed above, it is doubtful that the comment betrays a latent

misunderstanding of the post-Booker sentencing scheme. In fact, the judge

dispelled any doubts about his understanding, explicitly acknowledging his

discretionary power to depart from the guidelines. The judge simply did not

discern any reason in Esparza’s sentencing memorandum and attachment, the

                                          -9-
PSR, or arguments at the hearing itself to depart from the guidelines. M oreover,

he “set forth enough [on the record] to satisfy” this court “that he has considered

the parties’ arguments and has a reasoned basis for his own legal decision-making

authority.” Rita, 127 S. Ct. at 2468. A sliver of evidence of error is not

sufficient to call into question the “fairness, integrity or reputation” of the

sentencing proceedings in this case. See Romero, 491 F.3d at 1178.



2. Substantive Reasonableness

      “A substantively reasonable sentence ultimately reflects the gravity of the

crime and the § 3553(a) factors as applied to the case.” United States v. Atencio,

476 F.3d 1099, 1102 (10th Cir. 2007). Thus, we must simply inquire whether the

“sentence is reasonable in light of the factors set forth in 18 U.S.C. § 3553(a).”

United States v. Sanchez-Juarez, 446 F.3d 1109, 1114 (10th Cir. 2006). Fulfilling

our obligation under Anders, w e conclude that Esparza may also make a colorably

non-frivolous argument that his sentence is substantively unreasonable. However,

even if the argument is non-frivolous, it fails under our precedent.

      Esparza’s Colorado conviction for menacing carried with it a sentence of

only ninety days. Esparza argued before the district court that this sentence

suggests that the Colorado court found his self-defense argument persuasive.

However, ex post justifications for a plea agreement cannot control a sentencing

judge’s calculation of a defendant’s criminal history. The Colorado court may

                                          - 10 -
just as well have opted for a short sentence because Esparza was to be deported

after the sentence anyway. Esparza pled guilty to the offense, thereby passing up

his opportunity to vindicate his self-defense theory. Taken together with

Esparza’s other arrest, the menacing conviction convinced the sentencing judge

that Esparza’s conduct was not that of a “peaceful person.” As such, the

sentencing judge’s conclusion reasonably takes into account 18 U.S.C. §

3553(a)(1) (“the nature and circumstances of the offense and the history and

characteristics of the defendant”) and 18 U.S.C. § 3553(a)(2)(C) (“the need . . . to

protect the public from further crimes of the defendant”).

       M oreover, Esparza’s rationale for re-entering – his desire to send money to

his mother in M exico – does not remove him from the heartland of other similarly

situated defendants. In fact, it confirms that he is squarely within this zone. As

such, the sentencing court abided by its mandate to “impose a sentence sufficient,

but not greater than necessary, to comply with the purposes of section

3553(a)(2).” Conlan, 2007 W L 2538047 at *2.

III.   Conclusion

         For the foregoing reasons, we AFFIRM Esparza’s sentence and GRAN T

his counsel’s motion to withdraw.

                                       ENTERED FOR THE COURT



                                       David M . Ebel
                                       Circuit Judge

                                        - 11 -
