                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                    December 6, 2007
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 07-2036
          v.                                        District of New Mexico
 ALFONSO GARCIA-RAMIREZ,                          (D.C. No. CR-06-787-BB)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before BRISCOE, EBEL, and McCONNELL, Circuit Judges.


      Alfonso Garcia-Ramirez, a native and citizen of Mexico, pleaded guilty to

one count of re-entry of a deported alien previously convicted of an aggravated

felony, a violation of 8 U.S.C. §§ 1326(a)(1), (a)(2), and (b)(2). He was

sentenced to serve a term in prison of 37 months. Mr. Garcia-Ramirez timely

appealed his sentence. His counsel, Mark Fine, of the Fine Law Firm,

Albuquerque, Mew Mexico, filed an Anders brief and moved to withdraw as

counsel. See Anders v. California, 386 U.S. 738 (1967). Mr. Garcia-Ramirez has



      *
       This order and judgment is not binding precedent, except under the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 10 th
Circ. R. 32.1.
submitted no additional brief, and the government declined to submit a reply

brief. Because we find that neither Mr. Garcia-Ramirez nor his counsel raises any

non-frivolous issue on appeal, we grant counsel’s motion to withdraw and dismiss

the appeal.

                         I. FACTUAL BACKGROUND

      Mr. Garcia-Ramirez is a serial illegal immigrant and felon. He has been

deported to Mexico on at least four occasions, and continues to reenter the United

States illegally. Most recently, after serving three years in federal prison in Texas

for illegal entry, he was released and deported on June 10, 2005. Only six months

later, on January 20, 2006, he again entered the country illegally—the instant

offense—while still serving unsupervised release from the previous offense. The

Presentence Investigation Report (“PSR”) prepared by the United States Probation

Office in this case reflects that Mr. Garcia-Ramirez’s rap sheet also includes two

felony counts of controlled substance possession, felony distribution, another

misdemeanor possession count, three counts of criminal trespass, and a charge of

drinking in public, for which he never paid the fine. His other arrests include a

variety of drug and immigration offenses. A warrant for his arrest, for violating

probation, is outstanding in Missouri.

      In this case, Mr. Garcia-Ramirez was charged with violating 8 U.S.C. §§

1326(a)(1), (a)(2), and (b)(2), in that, having previously been deported from the

United States “subsequent to a conviction for commission of an aggravated

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felony,” he “enter[ed], attempt[ed] to enter, or [was] at any time found in, the

United States” without the permission of the Attorney General. He pleaded

guilty. Under the Sentencing Guidelines, the PSR calculated Mr. Garcia-

Ramirez’s total offense level at 17 and his criminal history score at 14, placing

him in criminal history category VI. The advisory Guidelines sentence for such

an offender is 51 to 63 months’ imprisonment.

      The district judge calculated Mr. Garcia-Ramirez’s total offense level to be

17. This reflected a base offense level of 8 under U.S.S.G. § 2L1.2(a), a 12-level

enhancement under § 2L1.2(b)(1)(B) for commission of the re-entry offense

subsequent to “a conviction for a felony drug trafficking offense for which the

sentence imposed was 13 months or less,” and a 3-level reduction for acceptance

of responsibility. The judge additionally applied a 2-level downward variance for

a fast-track plea which the government had offered but had revoked between the

defendant’s acceptance and the finalization of the agreement. The judge

acknowledged that the correctly calculated criminal history category for Mr.

Garcia-Ramirez was VI; the Guidelines range was therefore 41 to 51 months. The

judge, however, found that the category of VI over-represented Mr. Garcia-

Ramirez’s actual criminal history, and elected to depart downward from this range

to sentence him as though his criminal history category were V. See id. §

4A1.3(b)(i). An offense level of 15 and criminal history category of V would




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produce a Guidelines range of 37 to 46 months, and the judge gave Mr. Garcia-

Ramirez the bottommost sentence in this range.

      Mr. Garcia-Ramirez filed a timely notice of appeal of the conviction and

sentence. Counsel’s motion to withdraw and Anders brief followed. Under

Anders, a court-appointed defense counsel who believes that an appeal would be

“wholly frivolous” may withdraw only upon submission of a brief to the client

and the court indicating “anything in the record that might arguably support the

appeal.” Anders v. California, 386 U.S. 738, 744 (1967). The defendant may

then choose to submit arguments to the court. United States v. Calderon, 428

F.3d 928, 930 (10th Cir. 2005). If we conclude, after a full examination of the

record before us, that the appeal is frivolous, we will grant motion to withdraw

and dismiss the appeal. Id.; Anders, 386 U.S. at 744.

                                II. DISCUSSION

                   A. Validity of Sentencing Guideline § 2L1.2

      The first issue presented in the Anders brief is a facial challenge under the

Eighth Amendment to the validity of § 2L1.2 of the Sentencing Guidelines. That

guideline sets a base offense level of 8 for crimes of unlawfully entering or

remaining in the United States, and specifies enhancements in the offense level

for defendants who have previously been convicted of other crimes. The district

court held that Mr. Garcia-Ramirez’s base offense level was subject to a twelve-

level enhancement because his immigration violation was committed after his

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deportation on an earlier “conviction for a felony drug trafficking offense for

which the sentence imposed was 13 months or less.” U.S.S.G. § 2L1.2(b)(1)(B).

      Appellant challenges this guideline on the grounds that a sentence under it

is cruel and unusual, and that the use of a prior felony conviction to determine the

offense level, when the same prior conviction also contributes to the defendant’s

criminal history category, is an impermissible “double counting” of the

conviction. Appellate counsel is correct that these arguments are frivolous.

      The statutory maximum for the crime to which Mr. Garcia-Ramirez pled

guilty is twenty years, or 240 months, see 8 U.S.C. § 1326(b)(2), and “a sentence

within the prescribed statutory limits generally will not be found to be cruel and

unusual.” United States v. Newsome, 898 F.2d 119, 122 (10th Cir. 1990). In

United States v. Delacruz-Soto, 414 F.3d 1158, 1168 (10th Cir. 2005), we

affirmed, upon an Eighth Amendment challenge, a 46-month sentence for a

violation of the same offense, interpreted under the same guideline, to which Mr.

Garcia-Ramirez pled guilty. See also, e.g., United States v. Johnstone, 251 F.3d

281, 286 n.7 (1st Cir. 2001) (rejecting Eighth Amendment challenge to 45-month

sentence under same statute); United States v. Cardenas-Alvarez, 987 F.2d 1129,

1134 (5th Cir. 1993) (same; 100-month sentence); United States v. Cupa-Guillen,

34 F.3d 860, 865 (9th Cir. 1994) (same; 100-month sentence). Appellant’s

argument that his sentence violates the Eighth Amendment is therefore foreclosed

by precedent.

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      Appellant’s alternative argument that it is impermissible “double counting”

to use a previous felony conviction to calculate both the defendant’s offense level

and his criminal history category is likewise without merit. For offenses relating

to illegal reentry, a previous felony is factored into the offense level because “we

find it particularly troublesome to have illegal aliens returning who are not just

illegal aliens, but also criminals. The criminal history category, however, serves

the different purpose of evaluating the likelihood that any defendant will commit

another crime in the future.” United States v. Olmos-Esparza, 484 F.3d 1111,

1115 (9th Cir. 2007) (citation and internal quotation marks omitted). We have

repeatedly and consistently upheld sentences where the offense level and criminal

history both reflect the same prior criminal activity. E.g., United States v. Ruiz-

Terrazas, 477 F.3d 1196, 1204 (10th Cir. 2007); United States v.

Murriega-Santos, 2006 WL 3291683 at *2 (10th Cir. Nov.14, 2006)

(unpublished); United States v. Hernandez-Juarez, 185 F. App’x 758, 762–63

(10th Cir. 2006) (unpublished).

                       B. Classification of Offense as Felony

      The second issue raised in Appellant’s Anders brief is whether the

classification of a prior crime as a felony or a misdemeanor is a fact which must

be proven to a jury if not admitted by the defendant. Here, the application of

Guideline 2L1.2(b)(1)(B) turns on whether Mr. Garcia-Ramirez’s 1993 drug

trafficking conviction in Utah, the basis for the enhancement, was “a felony drug

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trafficking offense for which the sentence imposed was 13 months or less.” Mr.

Garcia-Ramirez argues that, because he did not admit that the offense was a

felony, and because this was not proven by the government prior to sentencing,

the guideline cannot be applied to him.

      This “argument simply miscasts a legal conclusion as a factual dispute.”

United States v. Cordova-Arevalo, 456 F.3d 1229, 1232 (10th Cir. 2006). Once

the offense itself has been admitted to, its classification for sentencing purposes is

a matter of federal law. On this question, it is clear that “felony,” under this

guideline, means any offense punishable by death or any term of imprisonment

exceeding one year. See U.S.S.G. § 2L1.2 cmt. 2; Cordova-Arevalo, 456 F.3d at

1232–33; see also, e.g., 18 U.S.C. § 3156(a)(3); U.S.C.G. § 4A1.2(o). As a legal

matter, it is apparent from the face of the statute under which Mr. Garcia-Ramirez

was convicted, Utah Code Ann. § 58-37-8 (1993), that the maximum penalty

exceeded one year’s imprisonment. See id. § 76-3-203. Mr. Garcia-Ramirez was

actually sentenced to a term of five years, with all but six months suspended. The

12-level enhancement—applicable where the maximum term of imprisonment is

greater than one year and the term actually served was 13 months or

less—therefore applies, and his argument to the contrary is meritless.

      Moreover, at Mr. Garcia-Ramirez’s plea hearing, the following colloquy

took place:




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      THE COURT: Have you previously been in the United States and
      while here did you commit and were you convicted of an aggravated
      felony, distribution of a controlled substance?

      MR. GARCIA-RAMIREZ: Yes.

R. Vol. IV, at 24 (emphasis added). Even if, then, he were correct that the

classification of his prior offense as a felony should be considered a factual

matter, he has admitted it, and that fact was properly used at sentencing.

                                III. CONCLUSION

      Our review of counsel’s Anders brief, as well as of the remainder of the

record, reveals no non-frivolous issues for appeal. We therefore GRANT

counsel’s motion to withdraw and DISMISS the appeal. The judgment of the

United States District Court for the District of New Mexico is AFFIRMED.

                                                     Entered for the Court,

                                                     Michael W. McConnell
                                                     Circuit Judge




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