                                                                                FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                        September 12, 2013
                       UNITED STATES COURT OF APPEALS                  Elisabeth A. Shumaker
                                                                           Clerk of Court
                                      TENTH CIRCUIT


 UNITED STATES OF AMERICA,
                Plaintiff–Appellee,                           No. 13-6032
           v.                                       (D.C. No. 5:12-CR-00242-R-1)
 JOSE PAYAN RUIZ,                                             (W.D. Okla.)
                Defendant–Appellant.


                              ORDER AND JUDGMENT*


Before LUCERO, McKAY, and MURPHY, Circuit Judges.


       After examining counsel’s Anders brief and the 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). This

case is therefore ordered submitted without oral argument.

       Appellant Jose Payan Ruiz pled guilty to illegally reentering the United States as

an aggravated felon in violation of 8 U.S.C. § 1326. The district court imposed a

sentence of twenty-nine months’ imprisonment, one month below the bottom of the

applicable guidelines range. The court varied downward by one month in order to

account for the time Appellant spent in immigration custody that would not otherwise be


       *
         This order and judgment is not binding precedent, except under the doctrines of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.
credited towards his sentence. However, the court concluded that the advisory guidelines

range was otherwise appropriate based on Appellant’s criminal history and past illegal

reentries.

       On appeal, Appellant’s counsel has filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), explaining why counsel believes there to be no reasonable grounds

for appeal. Appellant and the government were both given the opportunity to file a

response to the Anders brief, but neither did so.

       After conducting “a full examination of all the proceedings,” id. at 744, we agree

with defense counsel that Appellant has no non-frivolous grounds to raise on appeal.

Nothing in the record suggests a basis on which Appellant could challenge the entry of

his plea of guilty or the district court’s calculation of the applicable guidelines range for

his sentence, which he did not object to below. As for the substantive reasonableness of

Appellant’s sentence, we see no grounds in the record for Appellant to rebut the

presumption of reasonableness attached to his below-guidelines sentence. See United

States v. Balbin-Mesa, 643 F.3d 783, 788 (10th Cir. 2011). We have repeatedly rejected

the argument Appellant made below—that the illegal reentry guideline unfairly double-

counts prior convictions—thus rendering a guidelines-range sentence substantively

unreasonable. See, e.g., United States v. Ruiz-Terrazas, 477 F.3d 1196, 1204 (10th Cir.

2007). As for the potentially mitigating factors defense counsel cites to, such as

Appellant’s work ethic, limited criminal history, and family circumstances, these factors

are not sufficient to rebut the presumption of reasonableness attached to Appellant’s

                                              -2-
twenty-nine-month sentence under the circumstances of this case. See United States v.

McComb, 519 F.3d 1049, 1053 (10th Cir. 2007) (noting there will often be “a range of

possible outcomes” supported by the law and facts and, “rather than pick and choose

among them ourselves, we will defer to the district court’s judgment so long as it falls

within the realm of these rationally available choices”); United States v. Davila-

Salvatierra, 229 F. App’x 727, 731 (10th Cir. 2007) (rejecting a substantive

reasonableness challenge to a within-guidelines sentence for a defendant who reentered

the United States to visit his dying mother).

       Our thorough review of the record persuades us Appellant can raise no meritorious

issue on appeal. We therefore GRANT counsel’s motion to withdraw and DISMISS the

appeal.

                                                      Entered for the Court


                                                      Monroe G. McKay
                                                      Circuit Judge




                                                -3-
