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

                                TENTH CIRCUIT                                July 29, 2013
                       ___________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

v.
                                                              No. 13-5003
IGNACIO IJOM-BRITO,                                (D.C. No. 4:12-CR-00030-JHP-1)
                                                             (N.D. Okla.)
       Defendant-Appellant.
                   ____________________________________
                           ORDER AND JUDGMENT*
                      ____________________________________

Before ANDERSON and BALDOCK, Circuit Judges, and BRORBY, Senior
Circuit Judge.**
                 ____________________________________

       Defendant Ignacio Ijom-Brito pleaded guilty to one count of bringing in and

harboring aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(iii) and (a)(1)(B)(i). The

presentence report (PSR) assigned a total offense level of 12 after a six-level increase for

involuntary detention by coercion or threat, a four-level decrease for being a minimal

participant, and a two-level decrease for acceptance of responsibility. See U.S.S.G. §§

2L1.1; 2L1.1(b)(8)(A); 3B1.2(a); 3E1.1(a) (2012). Defendant’s criminal history was

       *
        This order and judgment is not binding precedent except under the doctrines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 parties’ briefs and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Category I, yielding a guideline range of 10–16 months. See U.S.S.G. §5A (2012). The

Government moved for a one-level downward departure pursuant to Guidelines Section

5K1.1 because of Defendant’s substantial assistance, which resulted in a total offense

level of 11 and a corresponding guideline range of 8–14 months. The court sentenced

Defendant to 14 months’ imprisonment.

      After filing a timely notice of appeal, counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), and moved to withdraw as counsel. Counsel identified

nothing within the appellate or district court records that could arguably support a

reversal of either the conviction or the sentence. Under Anders, “a copy of counsel’s

brief should be furnished the indigent and time allowed him to raise any points that he

chooses.” Id. at 744. Because immigration authorities removed Defendant to Guatemala

upon completion of his custodial term, he has not filed a response. Agreeing with

defense counsel’s conclusion that no non-frivolous issues supported Defendant’s appeal,

the Government did not file an answer. For the reasons that follow, we dismiss the

appeal and grant counsel’s motion to withdraw.

                                            I.

      Anders allows an attorney who, upon a conscientious review of the record finds an

appeal to be wholly frivolous, to advise the court of this fact and petition to withdraw as

counsel. See Anders, 386 U.S. at 744. “The Constitutional requirement of substantial

equality and fair process can only be attained where counsel acts in the role of an active

advocate in behalf of his client . . . .” Id. Accordingly, a motion to withdraw pursuant to

Anders must be accompanied by a brief referring to anything in the record that might

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arguably support the appeal.     Id. When an Anders brief is filed, the court of appeals

must engage in an independent analysis of the record to satisfy itself of two things. First,

it must “satisfy itself that the attorney has provided the client with a diligent and thorough

search of the record for any arguable claim that might support the client’s appeal.

Second, it must determine whether counsel has correctly concluded that the appeal is

frivolous.” McCoy v. Ct. App. Wis. Dist. 1, 486 U.S. 429, 442 (1988). If the court

concludes the appeal is wholly frivolous, it may grant counsel’s motion to withdraw and

dismiss the appeal.     United States v. Calderon 428 F.3d 928, 930 (10th Cir. 2005).

Because neither Defendant’s notice of appeal or brief specify whether he appeals his

conviction or his sentence, we will address both.

                                             II.

       We turn first to Defendant’s conviction. Defendant was convicted upon entering a

guilty plea. To comport with constitutional requirements, a defendant’s guilty plea must

be both knowing and voluntary. McCarthy v. United States, 394 U.S. 459, 466, (1969).

“[B]ecause a guilty plea is an admission of all the elements of a formal criminal charge, it

cannot be truly voluntary unless the defendant possesses an understanding of the law in

relation to the facts.” Id. Federal Rule of Criminal Procedure 11 is designed to assist the

district judge in ensuring that a guilty plea is “knowing and voluntary.” See Fed. R.

Crim. P. 11. Although district courts are required to comply with the procedures set forth

in Rule 11, “[a]ny variance from the procedures required by this rule which does not

affect substantial rights shall be disregarded as harmless error.” Fed. R. Crim. P. 11(h);

United States v. Gigot, 147 F.3d 1193, 1197 (10th Cir. 1998). “The issue of whether a

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district court has substantially complied with rule 11, including an analysis under

subsection 11(h), before accepting a guilty plea, is a question of law subject to review de

novo.” United States v. Vaughn, 7 F.3d 1533, 1535 (10th Cir. 1993); see also United

States v. Browning, 61 F.3d 752, 753 (10th Cir.1995). An analysis under subsection

11(h) requires that “[w]e review either for harmless or plain error, depending on whether

defense counsel objected to the validity of the plea at the district court level.” United

States v. Vidal, 561 F.3d 1113, 1118 (10th Cir. 2009) (citing United States v. Vonn, 535

U.S. 55, 59 (2002)).

      Defendant did not move to withdraw his guilty plea or otherwise object to any

alleged error during his plea hearing. Thus, we review for plain error. At Defendant’s

Rule 11 plea colloquy, the magistrate judge properly advised and questioned him in

accordance with the rule’s requirements.         Id.   The record shows that Defendant

understood his rights, the nature of the charge to which he was pleading, the maximum

possible penalty, and the terms of his plea agreement. See Fed. R. Crim P. 11. Nothing

supports the contention that his decision to plead guilty was involuntary. Accordingly,

we find no grounds for reversing Defendant’s conviction.

      Counsel points out the district court failed to inform Defendant that the sentencing

court would “calculate the applicable sentencing-guideline range and to consider that

range, possible departures under the Sentencing Guidelines, and other sentencing factors

under 18 U.S.C. § 3553(a) . . . .” See Fed. R. Crim. P. 11(b)(1)(M). However, the plea

agreement informed Defendant of these aspects of his plea.      Accordingly, as appellate

counsel correctly points out, the district court’s omission does not allow for a withdrawal

                                           -4-
of the plea under plain error standards.       We have previously held that where the

defendant “receives the information omitted by the district court from other sources [he]

generally cannot demonstrate that he would not have pleaded guilty had the court so

informed him.” United States v. Ferrel, 603 F.3d 758, 763-64 (10th Cir. 2010). See also,

Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005) (“[T]he constitutional prerequisites of a

valid plea may be satisfied where the record accurately reflects that the nature of the

charge and the elements of the crime were explained to the defendant by his own,

competent counsel.”).

                                                III.

       Turning to Defendant’s sentence, we confront a jurisdictional problem. Defendant

has completed his custodial sentence and been removed to Guatemala. “[W]hen the

injury for which an appellant seeks judicial relief disappears or is resolved extrajudicially

prior to the appellate court’s decision, the appellant can no longer satisfy the Article III

case or controversy jurisdictional requirement and the appeal is moot.” United States v.

Meyers, 200 F.3d 715, 718 (10th Cir. 2000), citing Burke v. Barnes, 479 U.S. 361, 363

(1987). Once the defendant has served his sentence, no direct injury can be redressed

through judicial action. “[S]ome concrete and continuing injury other than the now-

ended incarceration . . . must exist if the suit is to be maintained.” See Spencer v.

Kemna, 523 U.S. 1, 7 (1998). Thus, unless Defendant can point to some collateral

consequence attributable to his sentence the issue is moot on appeal.

       Counsel has not identified, and this court has been unable to find, any collateral

consequences that can be effectively redressed through judicial action. Defendant’s

                                            -5-
offense of bringing in and harboring aliens is an aggravated felony.        See 8 U.S.C. §

1101(a)(43)(N). An alien convicted of an aggravated felony is permanently inadmissible

into the United States. See 8 U.S.C. § 1182(a)(9)(A)(ii)(II).

       In United States v. Jurado-Lara, 287 F. App’x 704, 707 (10th Cir. 2008)

(unpublished), we held a sentencing appeal was not moot where the defendant’s sentence

was classified as an aggravated felony based on the length of the sentence imposed. See

8 U.S.C. § 1101(a)(43)(P) (defining as an aggravated felony fraud offenses “for which

the term of imprisonment is at least 12 months”). We reasoned that we could afford the

defendant relief because if “the application of [a] six-level enhancement was erroneous,

the upper end of the corrected advisory guideline range would be under 12 months” and

he would not be subject to the aggravated-felony conviction rendering him permanently

inadmissible.     Jurado-Lara, 287 F. App’x at 707.             Here, however, defendant’s

classification as an aggravated felon is dependent upon the nature of his crime rather than

the length of his sentence. See 8 U.S.C. § 1101(a)(43)(N) (defining a violation of 8

U.S.C. § 1324(a)(1)(A) or (2) as an aggravated felony except for a first offense involving

the defendant’s family members). Thus, a favorable decision regarding his sentence

would not change Defendant’s conviction for an aggravated felony or his inadmissibility

pursuant to 8 U.S.C. § 1182(a)(9)(A)(ii)(II). Consequently, we find the sentencing issue

moot on appeal.




                                           -6-
       We DISMISS the appeal and GRANT counsel’s motion to withdraw from

representation.

                            Entered for the Court,


                            Bobby R. Baldock
                            United States Circuit Judge




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