                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                February 26, 2009
                                 TENTH CIRCUIT
                                                               Elisabeth A. Shumaker
                            __________________________
                                                                   Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 08-2115
 v.                                           (D.Ct. No. 2:08-CR-00010-BB-1)
                                                          (D. N.M.)
 HORACIO MARTINEZ-RAMOS,

          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 Horacio Martinez-Ramos pled guilty to one count of unlawful re-

entry of a previously removed or deported alien subsequent to a prior felony

      *
         This order and judgment is not binding precedent except under the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.
battery conviction, in violation of 8 U.S.C. § 1326(a)(1) and (2) and (b)(2). The

district court sentenced Mr. Martinez-Ramos to thirty-eight months imprisonment.

Although Mr. Martinez-Ramos appeals his sentence, his attorney has filed an

Anders brief and moves 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

      Mr. Martinez-Ramos pled guilty without the benefit of a plea agreement.

During the Rule 11 colloquy conducted by the district court, Mr. Martinez-Ramos

indicated, in part, that he: (1) was pleading guilty without threat or coercion or

being under the influence of any substance that would affect his understanding of

the proceedings; (2) discussed with his counsel the offense charged, the

consequences of pleading guilty, and the possible sentence and Guidelines

considerations and was satisfied with his counsel; (3) understood the

consequences of pleading guilty and the maximum sentence of twenty years and

other possible punishments for the offense charged; (4) understood the rights he

was relinquishing in pleading guilty; (5) acknowledged he entered the country

illegally after prior deportation; and (6) confirmed his wish to plead guilty to the

offense charged. See Fed. R. Crim. P. 11(b). In accepting his guilty plea, the

district court found Mr. Martinez-Ramos’s guilty plea was knowing and voluntary

                                          -2-
and that he was fully competent and capable of entering an informed plea 1.



      After Mr. Martinez-Ramos pled guilty, a probation officer prepared a

presentence report calculating his sentence under the applicable 2007 United

States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”). The probation officer

calculated the base offense level at eight, under U.S.S.G. § 2L1.2(a), and added a

sixteen-level adjustment, under § 2L1.2(b)(1)(A)(ii), because Mr. Martinez-

Ramos had been deported subsequent to having been convicted of a felony

offense of battery, which constituted a crime of violence. In addition, based on

Mr. Martinez-Ramos’s acceptance of responsibility for the offense charged, the

probation officer included a three-level reduction, for a total offense level of

twenty-one. An offense level of twenty-one, together with a criminal history

category of III, resulted in a Guidelines imprisonment range of forty-six to fifty-

seven months.



      Mr. Martinez-Ramos filed a sentencing memorandum seeking a variance for

a twenty-four-month sentence based on the nature and circumstances of the

offense, his history and characteristics, and other § 3553(a) factors. In support,

he pointed out, in part, that he only entered this country illegally to visit his ten-


      1
        While Mr. Martinez-Ramos waived many of his constitutional rights, he
did not waive his right to appeal.

                                          -3-
year-old daughter from another marriage and to seek employment so he could

provide for his family in Mexico, including two small children and his wife, who

is unemployed. The government filed a response in opposition to his request for a

variance, noting, in part, that: (1) Mr. Martinez-Ramos’s family, economic, and

other circumstances were not dissimilar to other illegal re-entry defendants; and

(2) his felony count of battery arose from his shooting an individual twice while

in a bar.



       At the sentencing hearing, Mr. Martinez-Ramos’s counsel acknowledged

the Guidelines calculations were correct but, again, argued for a variance based

on the § 3553(a) factors, including his family circumstances. After hearing the

parties’ arguments, the district court noted it had considered the factual findings

in the presentence report, the Guidelines, and the sentencing factors under 18

U.S.C. § 3553(a) in imposing Mr. Martinez-Ramos’s sentence. In applying the

§ 3553(a) factors to Mr. Martinez-Ramos’s circumstances, the district court

concluded that the Guidelines range was greater than necessary to satisfy the

purposes announced in 18 U.S.C. § 3553(a). It then granted Mr. Martinez-

Ramos’s request for a variance by sentencing him to thirty-eight months

imprisonment.



       Following Mr. Martinez-Ramos’s timely notice of appeal for the purpose of

                                         -4-
challenging the length of his sentence, his appointed counsel filed an Anders

appeal brief explaining that after a thorough review of the file and records of the

case, along with the relevant case law, he determined the appeal was wholly

frivolous. See Anders, 386 U.S. at 744. In support, counsel pointed out Mr.

Martinez-Ramos’s guilty plea was entered into knowingly and voluntarily, and the

district court sentenced him below the recommended Guidelines range after

applying the properly-calculated Guidelines and considering the § 3553(a)

sentencing factors. Pursuant to Anders, this court gave Mr. Martinez-Ramos an

opportunity to respond to his counsel’s Anders brief. See id. Mr. Martinez-

Ramos responded with a letter asking for reconsideration of his sentence based on

his family circumstances, including the fact he has small children to support and a

wife who has difficulty supporting them alone. The government filed 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 id. The record establishes, among other things, that Mr. Martinez-

Ramos’s guilty plea was voluntarily, knowingly, and intelligently entered; he was

advised of and understood his possible sentence and other punishments he might

face in conjunction with his guilty plea to the offense charged; and sufficient

evidence supported his conviction. As to the length of his sentence, we review it

                                          -5-
for reasonableness, as guided by the factors in 18 U.S.C. § 3553(a), and have

determined a sentence properly calculated under the Guidelines is entitled to a

rebuttable presumption of reasonableness. See United States v. Kristl, 437 F.3d

1050, 1053-55 (10th Cir. 2006) (per curiam). Having made our reasonableness

review, we find no nonfrivolous basis for challenging the sentence imposed. The

district court properly calculated Mr. Martinez-Ramos’s sentence and then

granted his request for a variance in conjunction with the sentencing factors in

§ 3553(a), resulting in a sentence of thirty-eight months imprisonment, which is

below the advisory Guidelines range of forty-six to fifty-seven months

imprisonment. In so doing, it clearly considered his arguments in support of a

variance, including the issue he now raises on appeal concerning his family

circumstances. The fact the district court imposed a thirty-eight-month sentence,

rather than the twenty-four-month sentence requested, does not alone constitute a

meritorious reason for reconsideration of his sentence. Accordingly, Mr.

Martinez-Ramos has not provided any nonfrivolous reason warranting a lower

sentence.




                                         -6-
                                III. Conclusion

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

grant counsel’s motion to withdraw and DISMISS Mr. Martinez-Ramos’s appeal.



                                    Entered by the Court:

                                    WADE BRORBY
                                    United States Circuit Judge




                                      -7-
