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

                            FOR THE TENTH CIRCUIT                       September 24, 2015
                        _________________________________
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
UNITED STATES OF AMERICA,

     Plaintiff - Appellee,

v.                                                         No. 15-1080
                                               (D.C. No. 1:13-CR-00046-PAB-002)
FRANCISCO SAHAGUN-RAMIREZ,                                  (D. Colo.)
a/k/a Chico,

     Defendant - Appellant.
                     _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before KELLY, LUCERO, and McHUGH, Circuit Judges.
                  _________________________________

      Francisco Sahagun-Ramirez appeals following his guilty plea to conspiracy to

possess with intent to distribute methamphetamine. His counsel moves for leave to

withdraw in a brief filed pursuant to Anders v. California, 386 U.S. 738 (1967).

Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we dismiss

the appeal and grant counsel’s motion to withdraw.



      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                           I

      Sahagun-Ramirez was charged with numerous drug-related crimes in a multi-

defendant indictment. Pursuant to a written plea agreement, he pled guilty to one

count: conspiracy to possess with intent to distribute methamphetamine. Anticipating

an advisory Guidelines range of 70 to 87 months, the government agreed to

recommend a sentence of 38 to 48 months. However, the district court determined

that the proper Guidelines range was 97 to 121 months, based on a total offense level

of 29 and a criminal history category of II. The government maintained its

sentencing recommendation from the plea agreement. The court imposed a sentence

of 60 months’ imprisonment. Sahagun-Ramirez timely appealed.

                                           II

      If an attorney concludes that any appeal would be frivolous after

conscientiously examining the case, counsel may so advise the court and request

permission to withdraw. Anders, 386 U.S. at 744. Counsel must submit a brief

highlighting any potentially appealable issues and submit the brief to the defendant.

Id. The defendant may then submit a pro se brief. Id. If the court determines that

the appeal is in fact frivolous upon careful examination of the record, it may grant the

request to withdraw and dismiss the appeal. Id.

      Counsel’s Anders brief first considers the procedural and substantive

reasonableness of Sahagun-Ramirez’s sentence. “We review sentences under an

abuse of discretion standard for procedural and substantive reasonableness.” United

States v. Washington, 634 F.3d 1180, 1184 (10th Cir. 2011). “Procedural review

                                          -2-
asks whether the sentencing court committed any error in calculating or explaining

the sentence.” United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1214 (10th Cir.

2008). “Substantive review involves whether the length of the sentence is reasonable

given all the circumstances of the case in light of the factors set forth in 18 U.S.C.

§ 3553(a).” Id. at 1215 (quotation omitted). A below-Guidelines sentence is entitled

to a “rebuttable presumption of reasonableness.” United States v. Balbin-Mesa, 643

F.3d 783, 788 (10th Cir. 2011). We agree with counsel that the district court

correctly determined Sahagun-Ramirez’s Guidelines range and properly explained his

sentence by reference to the 18 U.S.C. § 3553(a) factors. And we see nothing in the

record rebutting the presumption that Sahagun-Ramirez’s below-Guidelines sentence

was substantively reasonable.

          The Anders brief also discusses whether Sahagun-Ramirez’s plea was valid.

To be valid, a guilty plea must be entered knowingly and voluntarily. See United

States v. Jim, 786 F.3d 802, 806 (10th Cir. 2015). We agree with counsel that the

record would not support a claim that Sahagun-Ramirez’s plea was invalid. He pled

guilty pursuant to a written plea agreement and did so only after acknowledging the

consequences of his plea and its concomitant waiver of various rights. See id. at 812-

13 (defendant’s acknowledgment sufficient to show knowing and voluntary nature of

plea).1


          1
         Although Sahagun-Ramirez’s plea agreement contains a waiver of appellate
rights, the government has not moved to enforce that waiver. Because an appellate
waiver does not limit our subject-matter jurisdiction, we proceed to consider the

                                           -3-
      In his pro se brief, Sahagun-Ramirez raises two issues. First, he contends that

the district court erred in assessing two criminal history points for a prior

misdemeanor illegal reentry offense. He cites U.S.S.G. § 4A1.2(c)(1), which

provides a list of misdemeanor offenses that should not be considered in determining

a defendant’s criminal history category, including offenses “similar” to those listed.

Id. None of the listed offenses, however, are similar to illegal reentry. See id.

(listing, among other offenses, fish and game violations, hitchhiking, and vagrancy).

Sahagun-Ramirez also states that this offense should not have been counted based on

the plea agreement. However, the plea agreement makes clear that Guidelines

determinations are committed to the court, and that the parties merely “believe[d]”

that Sahagun-Ramirez would be in criminal history category I.

      Second, Sahagun-Ramirez argues that the district court erred by failing to

consider a downward departure under a “fast track” or “early disposition” program.

See U.S.S.G. § 5K3.1. However, Sahagun-Ramirez has not shown that he would

have been eligible for this program, and thus is not entitled to relief on this basis.

See United States v. Lopez-Macias, 661 F.3d 485, 494 (10th Cir. 2011) (“In this

Circuit the law is well established that the defendant shall bear the burden of proof

for sentence decreases.” (quotation omitted)).




issues raised by Sahagun-Ramirez and counsel. See United States v. Hahn, 359 F.3d
1315, 1324 (10th Cir. 2004) (en banc).

                                           -4-
                                      III

     Because we are not presented with any meritorious grounds for appeal, we

GRANT counsel’s request to withdraw and DISMISS the appeal.




                                        Entered for the Court


                                        Carlos F. Lucero
                                        Circuit Judge




                                      -5-
