                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                     UNITED STATES COURT OF APPEALS March 26, 2008
                                                                Elisabeth A. Shumaker
                                   TENTH CIRCUIT
                                                                    Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                      No. 07-2238
 MIGUEL SILVA-TORRES,                            (D.C. No. CR-07-1374-JAP)
                                                      (D. New Mexico)
          Defendant-Appellant.



                                ORDER AND JUDGMENT *


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.



      Defendant Miguel Silva-Torres pled guilty to one count of illegal re-entry

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

U.S.C. § 1326(a) & (b)(2). The district court sentenced him to thirty-three

months’ imprisonment. On appeal, Defendant’s counsel has filed an Anders brief,

arguing that there are no legally viable issues for appeal. See Anders v.

California, 386 U.S. 738 (1967). The government has declined to file a response.


      *
        This order and judgment is not binding precedent, except under the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.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we dismiss the appeal and

grant counsel’s motion to withdraw.

                                          I.

      After Defendant pled guilty, the presentence report (“PSR”) determined

that Defendant’s base offense level was eight. U.S.S.G. § 2L1.2(a). Defendant

received a sixteen-level enhancement because of a previous conviction for a drug

trafficking offense. See id. § 2L1.2(b)(1)(A)(i). He also received a three-level

reduction for acceptance of responsibility, see id. § 3E1.1, which resulted in a

total offense level of twenty-one. In addition, because Defendant’s prior

conviction had resulted in a sentence of three years’ imprisonment, the PSR

assessed him three criminal history points. See id. § 4A1.1(a). This produced a

criminal history category of II, which, when combined with Defendant’s total

offense level of twenty-one, resulted in a Guidelines range of forty-one to fifty-

one months’ imprisonment. See id. ch. 5, pt. A.

      Defendant’s court-appointed counsel, Noel Orquiz, filed a Sentencing

Memorandum with the district court, agreeing with the PSR’s calculations under

the Guidelines but nonetheless requesting a variance under the factors listed in 18

U.S.C. § 3553(a). Mr. Orquiz explained that Defendant’s prior conviction had

occurred almost thirteen years earlier, when Defendant was only nineteen years

old. Mr. Orquiz argued, therefore, that the Guidelines range was “unreasonably

harsh and greater than necessary to achieve the statutory purposes of Section

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3553.” Sentencing Memorandum, Doc. 14, at 2.

      At the sentencing hearing, the district court agreed with Mr. Orquiz and

granted Defendant a downward variance from the Guidelines range. The court

sentenced Defendant to thirty-three months’ imprisonment, explaining:

      I have reviewed the Presentence Report factual findings. I have
      considered the sentencing guideline applications and the factors
      under [18 U.S.C. § 3553(a)]. The guideline imprisonment range is
      41 to 51 months. Sentence will be imposed, however, independent of
      the Guidelines under [18 U.S.C. § 3553(a)]. I have determined that a
      sentence of 33 months, to which the Government does not object, is a
      sentence that’s sufficient but not longer than necessary to . . . meet
      the goals of Section 3553(a)(1) and (2).

Sentencing Tr. at 6.

      Mr. Orquiz has now filed an Anders brief, arguing that there are no legally

viable issues for appeal. The government has not filed a response.

                                        II.

      Under Anders, a court-appointed defense counsel who has “conscientiously

examine[d] a case,” and concluded “that any appeal would be wholly frivolous,”

may

      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
      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) (citing Anders, 386


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U.S. at 744).

      We agree with counsel that no potentially meritorious issues exist on

appeal. There is no reason to believe that Defendant’s plea was anything other

than knowing and voluntary. See Brady v. United States, 397 U.S. 742, 755-56,

(1970). Defendant had the opportunity to object to any facts contained in the

PSR, but did not do so, and, under Rule 32(i)(3)(A) of the Federal Rules of

Criminal Procedure, the district court was permitted to “accept any undisputed

portion of the presentence report as a finding of fact.” Fed. R. Crim. P.

32(i)(3)(A).

      The record further indicates that Defendant’s sentence was reasonable. As

the Supreme Court recently explained in Kimbrough v. United States, --- U.S. ---,

128 S. Ct. 558, 564 (2007), “‘reasonableness’ is the standard controlling appellate

review of the sentences district courts impose.” First, we review for procedural

reasonableness, asking whether the district court committed a procedural error,

“such as failing to calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider the § 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, --- U.S. ---, 128 S. Ct. 586, 597 (2007).

We then review for substantive reasonableness “under an abuse-of-discretion

standard,” and, “[w]hen conducting this review, [we] will, of course, take into

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account the totality of the circumstances, including the extent of any variance

from the Guidelines range.” Id.; see also United States v. Smart, --- F.3d ---,

2008 WL 570804, at *4-*9 (10th Cir. 2008).

      There is no indication that the district court committed a procedural error

here. Moreover, the district court did not abuse its discretion in sentencing

Defendant to thirty-three months’ imprisonment—eight months below the bottom

of the Guidelines range. Defendant’s prior conviction was relatively stale, and

the district court’s analysis of Defendant’s sentence, under the factors listed in 18

U.S.C. § 3553(a), is persuasive. Defendant’s sentence was both procedurally and

substantively reasonable.

      We DISMISS Defendant’s appeal and GRANT counsel’s motion to

withdraw.


                                               Entered for the Court


                                               Mary Beck Briscoe
                                               Circuit Judge




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