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

                            FOR THE TENTH CIRCUIT                         September 24, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                             No. 18-2166
 v.                                                (D.C. No. 5:18-CR-01677-JBM-1)
                                                               (D. N.M.)
 JOAQUIN HERNANDEZ,

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before CARSON, BALDOCK, and MURPHY, Circuit Judges.**
                  _________________________________

      Defendant Joaquin Hernandez pleaded guilty to possessing methamphetamine

with the intent to distribute it in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)

and 18 U.S.C. § 2. The district court thereafter sentenced him to 151 months’

imprisonment and five years’ supervised release. Defendant now challenges that

sentence on appeal.




      *
         This order and judgment is not binding precedent, except under the doctrines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.
      **
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
      Defendant’s counsel, however, believes that any appeal relating to Defendant’s

sentence is destined to fail, and he therefore moves to withdraw as counsel under

Anders v. California, 386 U.S. 738 (1967).

      The Supreme Court’s decision in Anders . . . 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. The Court must then
      conduct a full examination of the record to determine whether [the]
      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)

(citing Anders, 386 U.S. at 744).

      Neither Defendant nor the government has responded to counsel’s Anders

brief. Nonetheless, we have carefully examined both the record and the “potential

appealable issues” that Defendant’s counsel dutifully raises. And after doing so, we

agree with Defendant’s counsel that “there are no non-frivolous issues upon which

[Defendant] has a basis for appeal.” Id.

      For one thing, the district court committed no procedural error when

fashioning Defendant’s 151-month sentence. The district court, for instance,

properly calculated Defendant’s sentencing range to be 151–188 months’

imprisonment under the United States Sentencing Guidelines. See United States v.

Sanchez-Leon, 764 F.3d 1248, 1261 (10th Cir. 2014) (“Procedural error includes

‘failing to calculate (or improperly calculating) the Guidelines range . . . .’” (quoting


                                            2
Gall v. United States, 552 U.S. 38, 51 (2007))). The sentencing transcript also gives

us no reason to believe that the district court viewed that range as mandatory. See id.

(“Procedural error includes . . . ‘treating the Guidelines as mandatory . . . .’” (quoting

Gall, 552 U.S. at 51)). Further, the district court expressly considered the 18 U.S.C.

§ 3553(a) sentencing factors and refrained from relying on any clearly erroneous

facts when it sentenced Defendant to the low-end of that Guidelines range. See id.

(“Procedural error includes . . . ‘failing to consider the § 3553(a) factors [and]

selecting a sentence based on clearly erroneous facts . . . .’” (quoting Gall, 552 U.S.

at 51)). And finally, the district court considered and rejected Defendant’s arguments

for a downward variance from that within-Guidelines sentence, the most notable of

which were based on (1) Defendant’s disagreement on policy grounds with the

applicable Guideline from which his sentencing range stemmed, and (2) his history

and characteristics under § 3553(a)(1). See id. (“Procedural error includes . . .

‘failing to adequately explain the chosen sentence . . . .’” (quoting Gall, 552 U.S. at

51)); id. at 1262 (observing that a district court adequately explains the chosen

sentence only when it “consider[s] the parties’ arguments” (quoting Rita v. United

States, 551 U.S. 338, 356 (2007))).

      Defendant’s sentence is also substantively reasonable. A “within-Guidelines

sentence is entitled to a presumption of substantive reasonableness on appeal.”

United States v. Craig, 808 F.3d 1249, 1261 (10th Cir. 2015) (quoting United States

v. Alapizco-Valenzuela, 546 F.3d 1208, 1215 (10th Cir. 2008)). And that

“presumption of reasonableness holds true even if the Guideline at issue arguably

                                            3
contains serious flaws or otherwise lacks an empirical basis.” United States v.

Wireman, 849 F.3d 956, 964 (10th Cir. 2017) (emphasis in original) (internal

quotation marks and alteration omitted). Thus, Defendant’s belief that his base

offense level was too high based on his policy disagreement with the Guidelines is

insufficient standing alone to render his 151-month sentence substantively

unreasonable. Even if that policy-based argument is “quite forceful,” United States

v. Regan, 627 F.3d 1348, 1354 (10th Cir. 2010), Defendant can rebut the

presumption of reasonableness on appeal only “by demonstrating [that] his sentence

is unreasonable when viewed in light of the § 3553(a) factors.” United States v.

Grigsby, 749 F.3d 908, 910 (10th Cir. 2014). But none of the § 3553(a) factors are

so forceful as to rebut that presumption. Indeed, while we recognize that Defendant

had a tumultuous past fueled by drug addiction, “a large percentage of individuals

who commit . . . crimes can point to some mitigating factor—drug addiction,

childhood abuse, a life of poverty, etc.—that partially fuels their decision to commit

those crimes.” United States v. DeRusse, 859 F.3d 1232, 1242 (10th Cir. 2017)

(Baldock, J., dissenting) (emphasis in original). The sentencing transcript confirms

that the district court recognized as much and did not vary downward for that very

reason. We discern no abuse of discretion in that rationale. See id. at 1236 (majority

opinion) (observing that we review a sentence for substantive reasonableness “under

a deferential abuse-of-discretion standard”).

      Defendant’s counsel was unable to think of any other potential appealable

issues besides the procedural and substantive reasonableness of Defendant’s

                                           4
sentence. We are likewise unable to discern any issues after our own searching

review of the record. We therefore agree with Defendant’s counsel that Defendant’s

appeal is wholly frivolous, grant counsel’s motion to withdraw under Anders, and

dismiss this appeal.


                                          Entered for the Court


                                          Joel M. Carson III
                                          Circuit Judge




                                         5
