                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  August 14, 2013
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 13-6043
          v.                                           W.D. Oklahoma
 GONZALO ARIAS-LOPEZ, also                      (D.C. No. 5:12-CR-00227-R-1)
 known as Juan Barrios-Gramajo,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before LUCERO, McKAY, and MURPHY, Circuit Judges.



      After examining appellant’s 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).

The case is therefore ordered submitted without oral argument.

      Although he was charged under his alias name Gonzalo Arias-Lopez, the

defendant’s real name is Juan Barrios-Gramajo. Barrios-Gramajo pleaded guilty,



      *
        This order and judgment is not binding precedent except under the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.
without a plea agreement, to a single count of illegal reentry, in violation of 8

U.S.C. § 1326. The district court imposed a downward variant sentence of

fourteen months’ imprisonment. At Barrios-Gramajo’s specific request, counsel

filed a notice of appeal. Counsel has, nevertheless, filed an Anders brief, 1

asserting she could find no meritorious basis for appeal and simultaneously

moving to withdraw as counsel. For those reasons set out below, this court

grants counsel’s motion to withdraw and dismisses this appeal.

      Barrios-Gramajo, a citizen of Guatemala, has spent most of his adult life in

the United States. He was removed to Mexico once in 1997 and three times in

1999. He was removed to Guatemala once in 1999. Arrest records show his

presence in the United States in 1988, 1989, 1990, 1995, 2004, 2007, 2009, and

2010, resulting in convictions for misdemeanor and felony thefts, traffic

infractions, driving under the influence, and possession of cocaine with the intent

to distribute. Barrios-Gramajo’s most recent arrest occurred in 2010, when he

was arrested on drug charges for the second time by Oklahoma state authorities.

At that time, Immigration and Customs Enforcement (“ICE”) determined his

alienage and placed a detainer on him. After Barrios-Gramajo served his state

drug sentences and was paroled in 2012, he was transferred into ICE custody. He

was then charged in federal court with Illegal Reentry. With the assistance of a



      1
          Anders v. California, 386 U.S. 738 (1967).

                                          -2-
federally certified interpreter, Barrios-Gramajo entered an unconditional guilty

plea to the charges without a plea agreement.

      The Presentence Investigation Report (“PSR”), which was disclosed to the

parties prior to sentencing, recommended an advisory guideline range of fifteen to

twenty-one months’ imprisonment. In response, Barrios-Gramajo filed an

abbreviated sentencing memorandum in support of a sentence below the advisory

guideline range. He asserted his conviction for illegal reentry was a regulatory,

not malicious, offense; his intention in returning to the United States was to work

to help support his family in Guatemala; he had never been prosecuted before for

illegal entry or reentry, and thus did not appreciate the serious legal consequences

of returning; he had participated in educational programs during his time in state

custody; and his remaining state probation would be an additional deterrent to

unlawful reentry in the future. At the sentencing hearing, the district court

concluded the applicable guideline range was fifteen to twenty-one months’

imprisonment, as calculated in the PSR. It then granted Barrios-Gramajo’s

request for credit, in the form of a downward variance, for time spent in ICE

detention. Thus, the district court sentenced Barrios-Gramajo to serve a term of

fourteen months’ imprisonment, one month below the advisory guideline range,

with no supervised release to follow.

      Counsel has filed an Anders brief advising the court this appeal is wholly

frivolous. Accordingly, counsel seeks permission to withdraw. Pursuant to

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Anders, counsel may “request permission to withdraw where counsel

conscientiously examines a case and determines that any appeal would be wholly

frivolous.” United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005).

Counsel is required to submit an appellate brief “indicating any potential

appealable issues.” Id. Once notified of counsel’s brief, the defendant may then

submit additional arguments to this court. Id. We “must then conduct a full

examination of the record to determine whether defendant’s claims are wholly

frivolous.” Id. This court notified Barrios-Gramajo of counsel’s Anders brief,

but Barrios-Gramajo did not file a response. The government declined to file a

brief. Thus, our resolution of the case is based on counsel’s Anders brief and this

court’s independent review of the record. That independent review confirms

counsel’s assertion that this appeal is meritless.

      Counsel identifies two potentially appealable issues, but recognizes both

issues are wholly frivolous. Although Barrios-Gramajo has not asserted his

unconditional guilty plea was unknowing or involuntary, counsel raises the issue

as a precautionary matter. As recognized by counsel, however, the transcript of

the plea colloquy shows the district court complied fully with the procedure set

forth in Fed. R. Crim. P. 11(b) for the acceptance of a guilty plea. The district

court meticulously questioned Barrios-Gramajo about his understanding of his

rights and the consequences of his plea, the voluntariness of his plea, and the

factual basis for his plea. Furthermore, the plea petition affirmed Barrios-

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Gramajo understood additional important details such as the impact of his

conviction on his immigration status and the role of the Sentencing Guidelines in

the sentencing process. See United States v. Gigley, 213 F.3d 509, 517 (10th Cir.

2000) (holding the plea petition and plea colloquy together demonstrated the

defendant entered her guilty plea knowingly, voluntarily, and without coercion).

In sum, the record conclusively demonstrates Barrios-Gramajo’s guilty plea was

valid and he has not asserted, either in discussions with counsel or in a separate

brief to this court, that it was involuntary or unknowing. Because the record

offers no support for this issue, an appeal on this basis would be frivolous.

      Counsel indicates Barrios-Gramajo wishes to challenge the length of the

sentence imposed by the district court. See United States v. Torres-Duenas, 461

F.3d 1178, 1183 (10th Cir. 2006) (noting an assertion a sentence is too long is a

challenge to the substantive reasonableness of the sentence). As recognized by

counsel, however, Barrios-Gramajo’s challenge to the substantive reasonableness

of his sentence is undeniably meritless. The PSR calculated the total offense

level as ten. Barrios-Gramajo’s eight criminal convictions spanning twenty-two

years, some of which could not be counted due to age, yielded a criminal history

category IV. The resulting guideline range was fifteen to twenty-one months’

imprisonment. The district court granted Barrios-Gramajo’s request for a

sentence below the advisory guidelines range based on time he had spent in ICE

custody which would not be credited by the BOP. When a sentence falls within a

                                         -5-
properly calculated guidelines range, it is entitled to a rebuttable presumption of

reasonableness. United States v. Parker, 553 F.3d 1309, 1322 (10th Cir. 2009).

Likewise, a below-guidelines sentence is entitled to the same rebuttable

presumption of reasonableness. United States v. Balbin-Mesa, 643 F.3d 783, 788

(10th Cir. 2011). Thus, Barrios-Gramajo bears the burden of demonstrating his

sentence is outside the “range of possible outcomes the facts and law at issue can

fairly support” under the sentencing factors presented in 18 U.S.C. § 3553(a).

United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007).

      Although this case presents some potentially mitigating facts, 2 it cannot

plausibly be claimed the district court abused its discretion in concluding those

facts did not justify a more lenient sentence given that the case also presents a set

of seriously unfavorable facts. In that regard, the record demonstrates Barrios-

Gramajo has an extensive criminal history, which includes four convictions for

theft, two convictions for driving under the influence, and two recent convictions

in fairly serious drug cases. In addition, he has made multiple unlawful entries

into the United States; used an assumed name; and misled federal authorities

about his country of origin, which led to his removal on several occasions to the


      2
        To wit: Barrios-Gramajo’s professed motivation to enter the United States
was the need to financially provide for his impoverished family, the lack of a
prior prosecution for illegal entry or reentry, his positive accomplishments while
in state prison, and his asserted motivation not to return to the United States in
the future due to the certainty of a new federal prosecution as well as potential
revocation of state probation.

                                         -6-
wrong country. Given all that, Barrios-Gramajo cannot prevail in showing his

sentence is outside the range of sentences the record can “fairly support.”

McComb, 519 F.3d at 1053. Any appeal challenging the substantive

reasonableness of the sentence would be frivolous.

      Pursuant to the Anders mandate, this court has undertaken an independent

review of the entire record in this case. Calderon, 428 F.3d at 930. Our review

demonstrates that both of the issues set out in counsel’s Anders brief are

undeniably frivolous. Likewise, this court’s review of the entire record reveals no

other potentially meritorious issues. Accordingly, we GRANT counsel’s motion

to withdraw and DISMISS this appeal.

                                          ENTERED FOR THE COURT


                                          Michael R. Murphy
                                          Circuit Judge




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