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

                             FOR THE TENTH CIRCUIT                            May 11, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 15-2174
                                                  (D.C. No. 2:14-CR-03820-RB-1)
EDWARDO CARRASCO-ORTIZ,                                      (D. N.M.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

      Edwardo Carrasco-Ortiz pled guilty to unlawful re-entry and received a sentence

of 57 months’ imprisonment. His counsel moves for leave to withdraw in a brief filed

pursuant to Anders v. California, 386 U.S. 738 (1967). Exercising jurisdiction under 28

U.S.C. § 1291 and 18 U.S.C. § 3742(a), we dismiss the appeal and grant counsel’s

motion to withdraw.

      Carrasco-Ortiz was deported from the United States on July 31, 2014, after

serving a sentence for Re-entry After Deportation. He was arrested again on August

      *
        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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
17, 2014, in New Mexico and again charged under 8 U.S.C. § 1326, Re-entry of

Removed Aliens. Carrasco-Ortiz pled guilty without a plea agreement. Because he

was previously convicted of attempted second degree murder in New York, the

Presentence Investigation Report (“PSR”) calculated a sixteen-level enhancement

under U.S.S.G. § 2L1.2(b)(1)(A), which resulted in a Guidelines range of 57 to 71

months’ imprisonment. Carrasco-Ortiz requested a downward variance to 24 months.

However, the district court concluded that Carrasco-Ortiz had “been appropriately

awarded a 16-level increase” for his prior attempted murder conviction, and that any

downward variance would not “promote respect for the law” because of his multiple

re-entry convictions and the need to deter him from again re-entering the United

States. The court further noted that Carrasco-Ortiz did not make “any argument that

[his New York conviction was for] anything other than a very violent felony.” The

court thus adopted the PSR calculation and sentenced Carrasco-Ortiz to a within-

Guidelines term of 57 months’ imprisonment. He timely appealed.

      On appeal, Carrasco-Oritz’s appointed counsel filed an Anders brief. When an

attorney conscientiously examines a case and determines that an appeal would be

frivolous, counsel must submit a brief advising the court and requesting permission

to withdraw. Anders, 386 U.S. at 744. The defendant may then submit a pro se brief,

id., as Carrasco-Ortiz did. If, after review, the court determines the appeal is

frivolous, it may grant the request to withdraw and dismiss the appeal. Id. However,

if the court finds any “legal points arguable on their merits (and therefore not



                                            2
frivolous) it must . . . afford the indigent the assistance of counsel to argue the

appeal.” Id.

       Counsel identifies the classification of Carrasco-Ortiz’s attempted murder

conviction as a crime of violence as a potentially appealable issue.1 However,

counsel notes that because Carrasco-Ortiz did not raise the issue in the district court,

any review would be for plain error. See United States v. Pablo, 696 F.3d 1280, 1287

(10th Cir. 2012). Even assuming legal error, counsel argues that such a mistake

would not be “plain” under our jurisprudence. “An error is plain if it is clear or

obvious under current, well-settled law. In general, for an error to be contrary to

well-settled law, either the Supreme Court or this court must have addressed the

issue.” United States v. DeChristopher, 695 F.3d 1082, 1091 (10th Cir. 2012).



       1
         Although counsel raises two other issues to consider, Carrasco-Ortiz
concedes that any other claim would be frivolous. However, we also note counsel’s
argument below, which he omits from his Anders brief. In his sentencing
memorandum, counsel argued that the § 3553(a) factors required a below-Guidelines
sentence “based on the excessive and unwarranted severity of the Sentencing
Guideline itself.” This argument constitutes another potentially appealable issue,
particularly because a district court may deviate from the Guidelines “based on
policy disagreements with them,” United States v. Lopez-Macias, 661 F.3d 485, 490
(10th Cir. 2011). The district court observed that “the 16-level enhancement does
create some disproportionately severe sentences” and the court noted its “great
trepidation” in applying the enhancement. The district court clearly harbored some
policy disagreement with the enhancement. But discretion to vary the sentence does
not overcome our previous holdings that the enhancement is not presumptively or
inherently unreasonable. See, e.g., United States v. Avalos-Estrada, 520 F. App’x
652, 655 (10th Cir. 2013) (unpublished) (collecting cases rejecting substantive
unreasonableness arguments). Thus, while it is within the power of the district court
to vary from a properly calculated Guideline, an argument that the district court acted
outside of its discretion by imposing this within-Guidelines sentence would be
wholly frivolous.
                                            3
      We have not uncovered any rulings from this court or the Supreme Court

determining whether a New York state conviction for attempted second degree

murder qualifies as a crime of violence. Further, rulings from other courts suggest

the conviction qualifies. See, e.g., United States v. Godoy-Castaneda, 614 F. App’x.

768, 772 (5th Cir. 2015) (unpublished) (holding that the first subsection of New

York’s second degree murder statute “is within the generic, contemporary meaning of

murder” and thus qualifies as a crime of violence for purposes of § 2L1.2(b)(1)

(A)(ii)).2 Given the absence of controlling authority—and the presence of persuasive

authority to the contrary—we agree with counsel that any argument that the district

court committed plain error in classifying the attempted second degree murder

conviction as a crime of violence would be wholly frivolous.

      Because our record review does not reveal any non-frivolous grounds for

appeal, we GRANT counsel’s motion to withdraw and DISMISS the appeal.


                                           Entered for the Court


                                           Carlos F. Lucero
                                           Circuit Judge




      2
        The record is not definitive as to which subsection of the second degree
murder statute formed the basis of Carrasco-Ortiz’s previous conviction. However,
the “Certificate of Disposition Indictment” suggests that he was convicted under
subsection one. The court considered the same uncertainty, and made the same
inference in Godoy-Castaneda, 614 F. App’x. at 773.
                                          4
