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

                             FOR THE TENTH CIRCUIT                            November 8, 2016
                         _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                            No. 16-4068
                                                    (D.C. No. 2:16-CR-00029-DN-1)
JESUS FAJARDO-ZAMORA,                                          (D. Utah)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

       Federal prisoner Jesus Fajardo-Zamora appeals his sentence. His appointed

counsel has submitted an Anders brief stating this appeal presents no non-frivolous

grounds for reversal. We have carefully reviewed the record, and we agree. Exercising

jurisdiction under 28 U.S.C. § 1291, we grant counsel’s motion and dismiss the appeal.




       *
         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 This order and judgment is not binding precedent,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. BACKGROUND

                             A. Conviction and Sentence

       Mr. Fajardo-Zamora pled guilty to a single count of reentry of a previously

removed alien, in violation of 8 U.S.C. § 1326. The Presentence Investigative Report

(“PSR”) recommended a total offense level of 21 and a criminal history category of III.

The offense level included a 16-level adjustment based on Mr. Fajardo-Zamora’s prior

drug-trafficking conviction. The PSR also recommended a two-level reduction based on

his consent to have his case resolved through the district court’s fast-track program. The

fast-track reduction moved the United States Sentencing Guidelines (“Guidelines”) range

from 46-57 months to 37-46 months.

       Mr. Fajardo-Zamora withdrew from the fast-track program at his change of plea

hearing and argued for a below-Guidelines sentence of 24 months based on his health,

age, and reason for returning to the United States. The district court “recognized [Mr.

Fajardo-Zamora’s] age is a factor” but also discussed his criminal history and expressed

“concerns about this defendant’s past [criminal] involvement.” ROA, Vol. III at 13. In

the end, the court imposed a 37-month sentence.

                                   B. Anders Brief

       Mr. Fajardo-Zamora appeals the district court’s sentence. His appointed counsel

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

       authorizes counsel to request permission to withdraw where counsel
       conscientiously examines a case and determines that any appeal would be
       wholly frivolous. Under Anders, counsel must 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.


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       The Court must then conduct a full examination of the record to determine
       whether defendant’s claims are wholly frivolous. If the court concludes
       after such an examination that the appeal is frivolous, it may grant
       counsel’s motion to withdraw and may dismiss the appeal.

United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005) (citations omitted).

       Counsel indicates two potential issues on appeal: (1) “[w]hether the district court

erred in declining to vary downward to a greater degree,” and (2) “[w]hether the district

court committed plain error in failing to explain the sentence adequately.” Anders Br. at

1. But counsel states neither argument was meritorious and seeks to withdraw given the

absence of non-frivolous arguments on appeal.

       The Clerk of Court sent a letter to Mr. Fajardo-Zamora informing him that his

counsel had filed an Anders brief and explaining that he had 30 days to file a responsive

brief. Mr. Fajardo-Zamora has not filed a response.

                                     II. DISCUSSION

                             A. Below-Guidelines Variance

       The first issue in the Anders brief is whether the district court erred in declining to

vary downward to a greater extent. Because Mr. Fajardo-Zamora withdrew from the fast-

track program, he no longer qualified for a two-level reduction, and his base offense level

was 21 with a Guidelines range of 46-57 months. Nevertheless, the district court

imposed a below-Guidelines sentence of 37 months.

       We review all sentences “under a deferential abuse-of-discretion standard.” Gall

v. United States, 552 U.S. 38, 41 (2007). “A sentence is substantively unreasonable if the

length of the sentence is unreasonable given the totality of the circumstances in light of



                                              -3-
the 18 U.S.C. § 3553(a) factors.” United States v. Haley, 529 F.3d 1308, 1311 (10th Cir.

2008). A sentence that falls below the advisory guideline range is presumptively

reasonable. United States v. Perez-Jiminez, 654 F.3d 1136, 1146-47 (10th Cir. 2011).

       Here, the district court considered Mr. Fajardo-Zamora’s age and criminal history

and imposed a below-Guidelines sentence. The sentence was presumptively reasonable,

and we have uncovered nothing in the record to suggest it was “arbitrary, capricious,

whimsical, or manifestly unreasonable.” United States v. Lente, 759 F.3d 1149, 1158

(10th Cir. 2014). There are no non-frivolous grounds for reversal based on a challenge to

the substantive reasonableness of the sentence.

                      B. Adequate Explanation for the Sentence

       The second issue in the Anders brief is whether the district court adequately

explained the sentence. Mr. Fajardo-Zamora did not raise this issue at the sentencing

hearing, which subjects it to plain error review on appeal. United States v. Romero, 491

F.3d 1173, 1177 (10th Cir. 2007) (stating plain error applies to unpreserved argument that

the district court did not adequately explain the sentence).

       “The [district] court, at the time of the sentencing, shall state in open court the

reasons for its imposition of the particular sentence.” 18 U.S.C. § 3553(c). But the court

“is generally not required to articulate its reasoning for each of the § 3553 factors.”

United States v. Sanchez-Leon, 764 F.3d 1248, 1266 (10th Cir. 2014). Nor is the court

required to “recite any magic words to show us that it fulfilled its responsibility to be

mindful of the [§ 3553] factors.” United States v. Contreras-Martinez, 409 F.3d 1236,

1242 (10th Cir. 2005) (quotations omitted). “Even when the sentencing court varies from


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the [G]uidelines, it need not explicitly discuss each of the § 3553(a) factors.” United

States v. Gantt, 679 F.3d 1240, 1249 (10th Cir. 2012).

       When explaining the sentence, the district court acknowledged Mr. Fajardo-

Zamora’s age, but also expressed concern with his past criminal conduct. ROA, Vol. III

at 13. We have reviewed the record and have found no non-frivolous arguments that the

district court’s explanation for the sentence was plainly erroneous.

                                   III. CONCLUSION

       Our independent review found no non-frivolous grounds for reversal based on the

issues identified in the Anders brief, nor did it uncover any other non-frivolous grounds.

We therefore grant counsel’s motion to withdraw and dismiss this appeal.

                                              ENTERED FOR THE COURT,



                                              Scott M. Matheson, Jr.
                                              Circuit Judge




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