                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                     UNITED STATES COURT OF APPEALS March 5, 2013
                                                               Elisabeth A. Shumaker
                                 TENTH CIRCUIT                     Clerk of Court
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 12-2118
 v.                                           (D.Ct. No. 2:12-CR-00276-JAP-2)
                                                          (D. N.M.)
 JULIAN GUILLERMO NAVARRO-
 MORALES,

          Defendant-Appellant.
                       ______________________________

                                ORDER AND JUDGMENT *


Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.



      After examining the briefs and 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). The case is

therefore ordered submitted without oral argument.



      Appellant Julian Guillermo Navarro-Morales pled guilty to one count of

      *
         This order and judgment is not binding precedent except under the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.
unlawful re-entry of a deported alien in violation of 8 U.S.C. § 1326(a) and (b)

and conspiracy to possess with intent to distribute marijuana in violation of 21

U.S.C. §§ 841 and 846. The district court sentenced Mr. Navarro-Morales to

forty-one months imprisonment–at the low end of the advisory United States

Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) range of forty-one to fifty-

one months imprisonment. Although Mr. Navarro-Morales appeals his conviction

and sentence, his attorney has filed an Anders brief and request for permission to

withdraw as counsel, which we construe as a motion to withdraw. 1 See Anders v.

California, 386 U.S. 738, 744 (1967). For the reasons set forth hereafter, we

grant counsel’s motion to withdraw and dismiss this appeal. Id.



                                  I. Background

      On February 9, 2012, a two-count information issued charging Mr.

Navarro-Morales with unlawful reentry of a deported alien in violation of 8

U.S.C. § 1326(a) and (b) and conspiracy to possess with intent to distribute

marijuana in violation of 21 U.S.C. §§ 841 and 846. 2 On February 9, 2012, Mr.

Navarro-Morales pled guilty without the benefit of a plea agreement to both

counts. In pleading guilty, the record reflects Mr. Navarro-Morales waived his

      1
         While no separate motion was filed, in the Anders brief, Mr. Navarro-
Morales’s counsel “moves to withdraw as counsel ... pursuant to the procedure set
forth in Anders v. California ....”
      2
          Mr. Navarro-Morales waived prosecution by indictment.

                                        -2-
right to go to trial, participated in a Rule 11 colloquy, and was advised of his

constitutional rights, which he stated he understood. He also acknowledged he

understood the nature of the offense charged, the maximum possible penalties for

the offense charged, and the consequences of his entering a guilty plea. He

further provided affirmation as to the factual predicate supporting his plea and

answered questions on the voluntariness of his plea and his physical and mental

condition. Based on his answers to the questions posed, the United States

Magistrate, as well as the district court judge, found his plea was knowingly,

voluntarily, and intelligently made and accepted his guilty plea.



      After Mr. Navarro-Morales pled guilty, the probation officer prepared a

presentence report which included facts surrounding Mr. Navarro-Morales’s

possession of marijuana and illegal reentry into the country and calculated his

sentence under the applicable 2011 Guidelines. The probation officer determined

the base offense level for his illegal reentry offense was 8, under U.S.S.G.

§ 2L1.2(a), and added a sixteen-level adjustment, under U.S.S.G.

§ 2L1.2(b)(1)(A)(vii), because Mr. Navarro-Morales had been deported

subsequent to having been convicted of a felony alien smuggling offense

involving conspiracy to transport and harbor illegal aliens, resulting in an

adjusted offense level of 24. He also calculated the base offense level for Mr.

Navarro-Morales’s illegal possession offense at 14, under U.S.S.G.

                                          -3-
§ 2D1.1(c)(11), given the offense involved 39.99 kilograms of marijuana. The

combined adjusted offense level for both offenses, together with a three-level

reduction for his acceptance of responsibility, resulted in a total offense level of

21.



      In calculating Mr. Navarro-Morales’s criminal history, the probation officer

considered only his prior conviction for conspiracy to transport and harbor illegal

aliens, which resulted in two criminal history points and a criminal history

category of II. A total offense level of 21, together with a criminal history

category of II, resulted in a Guidelines range of forty-one to fifty-one months

imprisonment.



      Prior to and at sentencing, Mr. Navarro-Morales made no objection to the

presentence report, including the factual statements and calculation of his

sentence contained therein, and neither he nor his counsel requested a downward

variance under 18 U.S.C. § 3553(a) but, instead, requested a sentence at the low

end of Guidelines range at forty-one months imprisonment. After accepting the

factual statements and sentencing calculations contained in the presentence report,

as agreed to by Mr. Navarro-Morales, the district court proposed a sentence of

forty-one months, stating it had reviewed the presentence report and considered

the Guidelines and 18 U.S.C. § 3553(a) sentencing factors. After giving the

                                          -4-
parties an opportunity to object to such a sentence and receiving none, the district

court ordered Mr. Navarro-Morales serve a forty-one-month sentence.



      After Mr. Navarro-Morales filed a timely pro se notice of appeal, his

appointed counsel, who also represented him before the trial court, filed an

Anders appeal brief explaining she could find nothing in the record, including any

legal or meritorious issue to support his appeal. See Anders, 386 U.S. at 744. In

support, counsel suggests Mr. Navarro-Morales knowingly, voluntarily, and

intelligently entered a plea of guilty to the charge in the indictment and received a

sentence at the low end of the advisory Guidelines range, which “was not imposed

as a result of an incorrect application of the advisory [Guidelines] or the

sentencing factors set forth in 18 U.S.C. § 3553(a),” thereby implicating the

validity of his conviction and the reasonableness of his sentence.



      Pursuant to Anders, this court gave Mr. Navarro-Morales an opportunity to

respond to his counsel’s Anders brief. See id. Mr. Navarro-Morales filed a

response, stating he “would like to question the calculation of my offense level”

and that his total offense level of 21, resulting in the Guidelines range of forty-

one to fifty-one months, included “a point, or points, added related to a

discrepancy in my name which led to the probation officer enhancing my points

for the use of two different names.” He further states, “I believe this is untrue

                                          -5-
and that the various court documents show that I merely abbreviated my name on

one occasion. I therefore believe that any sentencing range should not include

this added point, or points.” The government filed a notice of its intention not to

file an answer brief in this appeal.



                                       II. Discussion

      As required by Anders, we have conducted a full examination of the record

before us. See 386 U.S. at 744. The record provided on appeal demonstrates Mr.

Navarro-Morales’s guilty plea was voluntarily, knowingly, and intelligently

entered and, further, that sufficient evidence supported both his plea and

conviction, as provided by the facts presented in the uncontested presentence

report. Nothing presented on appeal indicates otherwise.



      As to his sentence, our appellate review for reasonableness includes both a

procedural component as well as a substantive component, which we review for

an abuse of discretion. See United States v. Ruby, ___ F.3d ___, 2013 WL

323216, at *2 (10th Cir. Jan. 29, 2013) (slip op.). We review the district court’s

factual findings for clear error and its legal conclusions de novo. Id. However, in

instances, as here, where objections to procedural reasonableness are not

contemporaneously raised, we review them for plain error. Id. at *3.




                                            -6-
      Having made such a review, we find no non-frivolous basis for challenging

the sentence imposed. The district court considered the sentencing factors in

§ 3553(a) and the advisory Guidelines, as well as the findings of fact and

sentencing calculations in the presentence report, to which Mr. Navarro-Morales

did not object. Our review of those sentencing calculations reveals no error, plain

or otherwise, which would make his sentence procedurally unreasonable. His

cursory argument, questioning the calculation of his sentence and criminal history

points assigned based on an alleged discrepancy in his name, is insufficient to

establish any error or inaccuracy in the assignment of two criminal history points

and the resulting criminal history category of II for his prior conviction for

conspiracy to transport and harbor illegal aliens. Moreover, nothing in the record

before us suggests Mr. Navarro-Morales is not the person convicted of this prior

offense, and we will not consider the underlying facts of his prior criminal

conviction in this appeal. 3

      3
          When considering whether to apply a prior offense in calculating a
sentence, we generally employ a categorical approach, looking only to the fact of
conviction and the statutory definition or elements of the prior offense when that
statute is unambiguous. See United States v. Hernandez-Rodriguez, 388 F.3d 779,
782-83 (10th Cir. 2004) (relying on Taylor v. United States, 495 U.S. 575, 602
(1990)). This approach avoids re-litigating prior convictions and includes
instances, like here, where a defendant pleads guilty to the prior offense at issue.
See generally Shepard v. United States, 544 U.S. 13, 18, 26 (2005). Even when
the statute is ambiguous or generic, the court is limited to only additionally
considering “the terms of the charging document, the terms of a plea agreement or
transcript of [the] colloquy between [the] judge and defendant in which the
factual basis for the plea was confirmed by the defendant, or to some comparable
                                                                        (continued...)

                                          -7-
      Finally, Mr. Navarro-Morales’s forty-one-month sentence is within the

Guidelines range and therefore presumptively reasonable for the purpose of our

abuse of discretion review as to its substantive reasonableness. See United States

v. Kristl, 437 F.3d 1050, 1053-55 (10th Cir. 2006). Mr. Navarro-Morales has the

burden of overcoming this presumption, which he has failed to do. See id. at

1054. As a result, we have no reason to conclude his sentence is either

procedurally or substantively unreasonable.



                                  III. Conclusion

      For these reasons, no meritorious appellate issue exists. Accordingly, we

grant counsel’s motion to withdraw and DISMISS Mr. Navarro-Morales’s appeal.



                                      Entered by the Court:

                                      WADE BRORBY
                                      United States Circuit Judge




      3
       (...continued)
judicial record of this information.” Id. However, Mr. Navarro-Morales fails to
present any argument or citation to the record for the purpose of our employing
such analysis of his prior conviction.

                                        -8-
