                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                   August 27, 2008
                     UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                   TENTH CIRCUIT                     Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                              Nos. 07-1299, 07-1300, 07-1301
 v.                                           (D.C. Nos. 01-CR-00433-WYD;
                                                 01-CR-00159-WYD; and
 CRUZ ARTURO AGUIRRE-                               06-CR-00462-WYD)
 CORDERO, a/k/a Jose Morales-                            (D. Colo.)
 Mosqueda, a/k/a Juan Carlos Aguirre,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before LUCERO, TYMKOVICH and HOLMES, Circuit Judges.


      After he pleaded guilty to unlawful reentry as a deported alien previously

convicted of an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2),

the district court sentenced Cruz Aguirre-Cordero to 51 months’ imprisonment.

At the same hearing, Aguirre-Cordero admitted to violations of the terms of his

supervised release in two prior sentences. The district court imposed revocation


      *
        The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 32.1.
sentences of 10 months’ and 18 months’ imprisonment to run concurrently with

each other, but consecutively to the 51-month sentence imposed for the unlawful

reentry conviction. In this consolidated appeal, Aguirre-Cordero challenges all

three sentences. Aguirre-Cordero’s counsel moves for leave to withdraw from the

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

Because we conclude that the record presents no nonfrivolous grounds for relief,

we grant counsel’s motion to withdraw and affirm Aguirre-Cordero’s sentences.

We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

                                         I

      In February 2000, Aguirre-Cordero was convicted in the District of New

Mexico of possession with intent to distribute less than 50 kilograms of

marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D) (the “New Mexico

case”). The district court sentenced him to 10 months’ imprisonment, followed

by 2 years’ supervised release. Aguirre-Cordero was subsequently deported to

Mexico on July 5, 2000.

      On March 28, 2001, during his term of supervised release, Aguirre-Cordero

was arrested on a traffic charge in Greeley, Colorado. Having illegally returned

to the United States, Aguirre-Cordero was then indicted on one count of unlawful

reentry of a deported alien previously convicted of an aggravated felony, in




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violation of 8 U.S.C. § 1326(a) and (b)(2) (the “prior unlawful reentry case”). 1

The government also alleged that Aguirre-Cordero’s unlawful reentry violated a

condition of his supervised release in the New Mexico case, which had been

transferred to the District of Colorado following the indictment for unlawful

reentry.

      Aguirre-Cordero pleaded guilty to the unlawful reentry charge and admitted

to violating the condition of his supervised release. On the unlawful reentry

charge, the district court sentenced Aguirre-Cordero to 37 months’ imprisonment

followed by 3 years’ supervised release. The district court also revoked Aguirre-

Cordero’s supervised release in the New Mexico case and sentenced him to a

consecutive 4-month term of imprisonment followed by 32 months’ supervised

release. On April 26, 2004, following his release from prison, Aguirre-Cordero

was again deported to Mexico.

      Nevertheless, on October 30, 2005, having once again reentered the United

States illegally, Aguirre-Cordero was arrested by the Colorado State Patrol and

charged in state court with possession of a controlled substance. He was

      1
         Aguirre-Cordero’s conviction in the New Mexico case provided the
predicate aggravated felony for this unlawful reentry charge. Under the
Immigration and Nationality Act, an “aggravated felony” includes “illicit
trafficking in a controlled substance . . ., including a drug trafficking crime.” 8
U.S.C. § 1101(a)(43)(B). In turn, under 18 U.S.C. § 924(c)(2), a “drug
trafficking crime” includes “any felony punishable under the Controlled
Substances Act (21 U.S.C. § 801 et seq.).” See Batrez Gradiz v. Gonzalez, 490
F.3d 1206, 1208 (10th Cir. 2007). Possession with intent to distribute less than
50 kilograms of marijuana is such a felony. See 21 U.S.C. § 841(b)(1)(D).

                                         -3-
convicted and, after serving part of a 15-month sentence, was paroled to the

custody of the Bureau of Immigration and Customs Enforcement. Throughout

this period, Aguirre-Cordero was subject to supervised release in both the New

Mexico case and the prior unlawful reentry case.

      On November 13, 2006, Aguirre-Cordero was indicted for unlawful reentry

of a deported alien previously convicted of an aggravated felony, in violation of 8

U.S.C. § 1326(a) and (b)(2) (the “extant unlawful reentry case”). The government

also petitioned to revoke Aguirre-Cordero’s supervised release in the New Mexico

case and in the prior unlawful reentry case, on the grounds that he had violated

the conditions of his release by (1) unlawfully reentering the United States and

(2) unlawfully possessing a controlled substance. Aguirre-Cordero subsequently

pleaded guilty to the extant unlawful reentry charge and admitted to both

violations of his terms of supervised release.

      On the extant unlawful reentry charge, Aguirre-Cordero’s presentence

report calculated a base offense level of 8. U.S.S.G. § 2L1.2(a). His offense

level was then increased by 12 levels due to his previous deportation after

conviction of a drug trafficking felony, § 2L1.2(b)(1)(B), and reduced by 3 levels

for acceptance of responsibility upon motion of the government, § 3E1.1(b),

resulting in a total offense level of 17. Based on his criminal history category of

VI, the resulting advisory United States Sentencing Guidelines (“Guidelines”)

range was 51 to 63 months’ imprisonment. At sentencing, the government

                                        -4-
recommended that Aguirre-Cordero’s sentence not exceed the bottom of the

applicable Guidelines range. The district court accepted the government’s

recommendation and sentenced Aguirre-Cordero to 51 months’ imprisonment

followed by 3 years’ supervised release.

      Aguirre-Cordero’s Colorado state conviction, the more serious of his

supervised release violations, 2 qualifies as a Grade B violation under the

Guidelines. § 7B1.1(a)(2). Combined with his criminal history category of I

when originally sentenced in the New Mexico case, the Guidelines range for his

release violations in that case was 4 to 10 months’ imprisonment. § 7B1.4(a). In

the prior unlawful reentry case, Aguirre-Cordero had a criminal history category

of IV when originally sentenced, resulting in a Guidelines range of 12 to 18

months’ imprisonment for the violations. Id. The district court revoked Aguirre-

Cordero’s release in both cases and sentenced him to 10 months’ and 18 months’

imprisonment respectively. The court ordered these sentences to be served

concurrently with each other but consecutively to the 51-month sentence for the

unlawful reentry charge. Aguirre-Cordero now appeals each sentence. 3



      2
       The sentencing range for a revocation of supervised release resulting from
more than one violation is calculated using the most serious of the violations. See
§ 7B1.1(b).
      3
        In appeal No. 07-1299, he appeals the revocation of his supervised release
in the New Mexico case. In No. 07-1300, he appeals the revocation of his release
in the prior unlawful reentry case. And in No. 07-1301, he appeals the sentence
for his most recent unlawful reentry.

                                        -5-
                                          II

      If an attorney conscientiously examines a case and determines that any

appeal would be wholly frivolous, counsel may “so advise the court and request

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

to both the appellate court and the client, pointing to anything in the record that

could potentially present an appealable issue. The client may then choose to offer

argument to the court. If, upon complete examination of the record, the court

determines that the appeal is frivolous, it may grant counsel’s request to

withdraw. Id. Acting pursuant to Anders, counsel in the present case provided

Aguirre-Cordero with a copy of the appellate brief, and Aguirre-Cordero has

declined the opportunity to file a pro se brief in response.

      Counsel’s brief raises only three arguably appealable issues: (1) whether

the district court complied with Rule 11 of the Federal Rules of Criminal

Procedure when accepting Aguirre-Cordero’s guilty plea; (2) whether the district

court imposed reasonable sentences; and (3) whether the district court abused its

discretion by imposing consecutive sentences. Upon review of the record, we

conclude that there is no nonfrivolous basis, whether raised or unraised by

counsel, for challenging the sentences.

                                          A

      Our independent review of the record reveals that the district court

complied with Federal Rule of Criminal Procedure 11. Rule 11 requires that,

                                          -6-
prior to accepting a defendant’s guilty plea, “the court must address the defendant

personally in open court . . . . [T]he court must inform the defendant of, and

determine that the defendant understands,” certain rights and matters relating to

his likely punishment, including the right to plead not guilty, the right to a jury

trial, the right to counsel, and the right to confront adverse witnesses. Fed. R.

Crim. P. 11(b)(1). In addition, the district court must determine whether the plea

is voluntary, Fed. R. Crim. P. 11(b)(2), and whether a factual basis exists to

support it, Fed. R. Crim. P. 11(b)(3). The transcript of the Aguirre-Cordero’s

plea colloquy demonstrates that the district court faithfully applied Rule 11.

Through a translator, the district court explained the rights Aguirre-Cordero

waived by pleading guilty, described the law that would govern his punishment,

ensured the plea was voluntary, and probed the facts underlying the plea.

Accordingly, the district court committed no error with respect to Rule 11.

                                           B

      The record also shows that Aguirre-Cordero received reasonable sentences.

We review Aguirre-Cordero’s sentence on the unlawful reentry charge for

reasonableness, deferring to the district court’s sentencing determination under an

abuse of discretion standard. United States v. A.B., 529 F.3d 1275, 1277 (10th

Cir. 2008). “Our appellate review for reasonableness includes both a procedural

component, encompassing the method by which a sentence was calculated, as well

as a substantive component, which relates to the length of the resulting sentence.”

                                          -7-
United States v. Smart, 518 F.3d 800, 803 (10th Cir. 2008). A court commits

procedural error by, among other things, “failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as mandatory, failing to

consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen sentence—including

an explanation for any deviation from the Guidelines range.” Gall v. United

States, 128 S. Ct. 586, 597 (2007). A court commits substantive error if it

imposes an unreasonably long sentence in light of the statutory factors in §

3553(a). See A.B., 529 F.3d at 1278 (“‘In evaluating the substantive

reasonableness of a sentence, we ask whether the length of the sentence is

reasonable considering the statutory factors delineated in 18 U.S.C. § 3553(a).’”

(quoting United States v. Hamilton, 510 F.3d 1209, 1217-18 (10th Cir. 2007))).

      On the unlawful reentry conviction, the court imposed a procedurally and

substantively reasonable sentence. The district court committed none of the

procedural errors identified in Gall. It properly calculated the Guidelines range,

acknowledged the Guidelines’ advisory status, and considered arguments of both

Aguirre-Cordero and the government before imposing a within-Guidelines

sentence. See United States v. Cereceres-Zavala, 499 F.3d 1211, 1217 (10th Cir.

2007) (“[W]here a district court imposes a sentence falling within the range

suggested by the Guidelines, Section 3553(c) requires the court to provide only a

general statement of the reasons for its imposition of the particular sentence.”

                                        -8-
(quotation omitted)). In addition, we presume that sentences within the Guidelines

range are substantively reasonable, United States v. Kristl, 437 F.3d 1050, 1054

(10th Cir. 2006), and nothing in the record rebuts that presumption. To the

contrary, a sentence of 51 months’ imprisonment, the bottom of the suggested

Guidelines range, was substantively reasonable in light of the factors identified in

§ 3553(a).

      We also review revocation sentences for procedural and substantive

reasonableness. A district court imposes a procedurally reasonable revocation

sentence when it properly considers the sentencing factors outlined in 18 U.S.C.

§ 3583(e), 4 and we apply a rebuttable presumption of substantive reasonableness

to within-Guidelines sentences, see Kristl, 437 F.3d at 1054. 5 Here, the district

court carefully explored the asserted bases for the alleged supervised release

violations, explained the applicable Guideline ranges associated with each

violation, and imposed sentences within those suggested ranges. The district



      4
       Section 3583(e) incorporates several of the sentencing factors in 18
U.S.C. § 3553(a). See United States v. Contreras-Martinez, 409 F.3d 1236, 1242
& n.3 (10th Cir. 2005).
      5
        We have not yet had occasion to explore “the exact contours of our
post-Booker standard of review” for the substantive reasonableness of revocation
sentences. United States v. Rodriguez-Quintanilla, 442 F.3d 1254, 1258 (10th
Cir. 2006); see also id. at 1256-58 (explaining that some cases apply an “abuse of
discretion” standard while others apply a “plainly unreasonable” standard). We
need not define those contours here, however, because Aguirre-Cordero’s
revocation sentences are reasonable under either an “abuse of discretion” or a
“plainly unreasonable” standard. See id. at 1258.

                                        -9-
court therefore committed no procedural error. See Cereceres-Zavala, 499 F.3d at

1217 (explaining that a district court need only provide a “general statement” of

reasons for imposing a within-Guidelines sentence). Moreover, nothing in the

record overcomes the presumption of substantive reasonableness applicable to

within-Guidelines sentences. Accordingly, the court committed no error in

revoking Aguirre-Cordero’s terms of supervised release and imposing sentences

of 10 and 18 months’ imprisonment.

                                          C

      Finally, the district court did not abuse its discretion by ordering

consecutive sentences. See Contreras-Martinez, 409 F.3d at 1241 (reviewing such

a decision for abuse of discretion). Although advisory, the Guidelines provide

that “[a]ny term of imprisonment imposed upon the revocation of probation or

supervised release shall be ordered to be served consecutively to any sentence of

imprisonment that the defendant is serving, whether or not the sentence of

imprisonment being served resulted from the conduct that is the basis of the

revocation of probation or supervised release.” U.S.S.G. § 7B1.3(f). The district

court followed the Guidelines’ recommendation here and more than sufficiently

justified its decision. Accordingly, the district court acted well within its

discretion in imposing consecutive rather than concurrent sentences. See

Rodriguez-Quintanilla, 442 F.3d at 1258-59; Contreras-Martinez, 409 F.3d at

1241-42.

                                        - 10 -
                                      III

     For the foregoing reasons, we GRANT counsel’s motion to withdraw and

AFFIRM Aguirre-Cordero’s sentences.



                                  ENTERED FOR THE COURT



                                  Carlos F. Lucero
                                  Circuit Judge




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