                                                                              FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                         UNITED STATES COURT OF APPEALS                 January 15, 2013
                                    TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                          Clerk of Court


 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,                                No. 12-2037
                                                    (D.C. No. 5:11-CR-02515-WJ-1)
 v.                                                            (D. N.M.)
 ERASMO ESPARZA-MORENO,

           Defendant-Appellant.



                                 ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.



       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,

submitted without oral argument.

       Defendant Erasmo Esparza-Moreno (Esparza) pleaded guilty to one count of

illegal reentry after deportation subsequent to an aggravated felony conviction, in



       *
        This order and judgment is not binding precedent, except under the doctrines of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.
violation of 8 U.S.C. §§ 1326(a) and (b)(2), and was sentenced to a term of imprisonment

of thirty months. On appeal, Esparza’s counsel has filed an Anders brief and a motion to

withdraw as counsel. See Anders v. California, 386 U.S. 738, 744 (1967). Esparza was

provided with a copy of the Anders brief and has filed a supplemental pro se brief. The

government has declined to file a brief. Exercising jurisdiction pursuant to 28 U.S.C. §

1291, we grant counsel’s motion to withdraw and dismiss the appeal.

                                             I

       In April 2011, special agents from United States Immigration and Customs

Enforcement (ICE) received information from the Homeland Security Investigations Tip

Line indicating that Esparza, who was living and working in Hobbs, New Mexico, had

been previously deported from the United States. A subsequent investigation revealed

that in 2001, Esparza was convicted in New Mexico state court of a felony drug offense

and sentenced to a three-year term of imprisonment. The investigation further revealed

that Esparza, upon his release from state prison in 2003, was deported from the United

States to Mexico.

       On June 24, 2011, ICE special agents arrested Esparza at his home. After being

advised of his rights, Esparza agreed to talk to the agents and admitted that he had been

previously deported and that he did not seek or receive permission from the appropriate

authority to reenter the United States. Esparza further admitted that he was a citizen of

Mexico and had no valid claim to United States citizenship.

       Following Esparza’s arrest, a criminal complaint was filed against him charging

                                             2
him with a single count of illegal reentry after deportation subsequent to an aggravated

felony conviction, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). On September 21,

2011, a federal grand jury indicted Esparza on the same count.

       Esparza consented to proceed before a magistrate judge and, on October 3, 2011,

Esparza pleaded guilty to the single count alleged in the indictment. The magistrate judge

accepted the plea, expressly noting that it was entered by Esparza freely, voluntarily, and

intelligently. The United States Probation Office prepared a presentence investigation

report (PSR) that calculated Esparza’s total offense level to be 21 and his criminal history

category to be II, resulting an advisory guidelines range of imprisonment of 41 to 51

months. Esparza did not dispute the PSR’s calculations. But he did file a motion for

downward departure from the advisory guideline range on the basis of Esparza’s

purported cultural assimilation.

       At the sentencing hearing on February 16, 2012, the district court adopted the

PSR’s findings and calculations, and rejected Esparza’s motion for downward departure

on the basis of cultural assimilation. Esparza’s counsel requested a downward variance

based upon the sentencing factors outlined in 18 U.S.C. § 3553(a). The district court

granted that request and sentenced Esparza to a term of imprisonment of thirty months.

       Judgment was entered in the case immediately following the sentencing hearing,

and Esparza has since filed a timely notice of appeal.

                                             II

       Under Anders, defense counsel may “request permission to withdraw where

                                             3
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). In such a

case, “counsel must submit a brief to the client and the appellate court indicating any

potential appealable issues based on the record.” Id. The client is then permitted to

submit arguments to the court in response. We are then obligated to conduct

independently “a full examination of all the proceeding[s] to decide whether the case is

wholly frivolous.” United States v. Snitz, 342 F.3d 1154, 1158 (10th Cir. 2003) (internal

quotations omitted).

       In this case, Esparza’s counsel has submitted a brief asserting that “there is no

issue of arguable merit in this case.” Aplt. Br. at 3. In support, Esparza’s counsel asserts

that “[n]o pretrial issues were preserved for appellate review,” “[t]he lengthy plea

colloquy went beyond the requirements of law,” “no assertion can be made that the plea

was not knowingly nor voluntary [sic] entered by [Esparza],” and “no assertion can be

made that [Esparza] did not understand the range of punishment in his case.” Id. Lastly,

Esparza’s counsel asserts that “[t]he sentence was below the applicable guideline range

and the imposition of a sentence below the guideline range is not arguably an abuse of

discretion.” Id.

       After conducting our own examination of the record in this case, we agree with

Esparza’s counsel that the appeal is frivolous. The record on appeal establishes that

Esparza’s guilty plea was knowing and voluntary, and Esparza does not assert otherwise

in his pro se brief. With respect to the sentencing proceedings, neither Esparza nor the

                                             4
government objected to the advisory guidelines range calculated by the PSR, which was

adopted in full by the district court. As for the sentence imposed by the district court, it

was below the advisory guidelines range and was selected by the district court after

consideration of the factors outlined in 18 U.S.C. § 3553(a). Consequently, we conclude

that the sentence imposed was both procedurally and substantively reasonable. See Gall

v. United States, 552 U.S. 38, 51 (2007).

       Esparza has filed a supplemental pro se brief asserting three challenges to the

sentence imposed by the district court. But, for the reasons outlined below, we find no

merit to any of those challenges.

       Esparza first suggests that his sentence is procedurally unreasonable because the

district court did not take into account the sentence that a similarly situated defendant

prosecuted in a “fast-track” district would likely receive. According to Esparza, “had [he]

been arrested in a ‘fast-track’ district, he would have been eligible to recive [sic] up to a

4-level reduction in his offense level which could have reduced his offense level from 21

to 17 with a range of 27-33 months rather than the range of 41-47 months he actually

recived [sic].” Aplt. Supp. Br. at 1. A so-called “fast track” program allows a defendant,

upon motion of the government, to obtain up to a 4-level downward departure from his

offense level in exchange for pleading guilty pursuant to an early disposition program.

See U.S.S.G. § 5K3.1. It is undisputed that the District of New Mexico did not offer such

a program at the time of Esparza’s prosecution. But the record on appeal establishes that

the district court varied downward from the advisory guideline range and imposed a

                                               5
sentence essentially equivalent to one that a defendant charged in a fast-track district

likely would have received. See United States v. Lopez-Macias, 661 F.3d 485, 487 (10th

Cir. 2011) (holding that “a district court in a non-fast-track district has the discretion to

vary from a defendant’s applicable guideline range based on fast-track sentence

disparities”). Consequently, we reject this challenge to the substantive reasonableness of

the sentence.

       Esparza next takes issue with the district court’s adoption of the PSR’s

recommended sixteen-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A). Section

2L1.2(b)(1)(A) of the Sentencing Guidelines requires a district court to increase a

defendant’s offense level “by 16 levels” if the “defendant was previously deported . . .

after . . . a conviction for a felony that is . . . a drug trafficking offense for which the

sentence imposed exceeded 13 months.” U.S.S.G. § 2L1.2(b)(1)(A). Esparza argues that

this enhancement is excessive because (a) the United States Sentencing Commission “has

never provided any justification for” it, Aplt. Supp. Br. at 4, (b) “th[e] enhancement has

nothing to do [with the way] in which the offense was committed,” id. at 5, (c) the

“enhancement . . . impacts mostly Hispanics and persons from . . . poor circumstances . . .

who are largely coming to the United States . . . in order to seek employment,” id., and (d)

the enhancement “can create sentencing disparities” for “defendants whose offense is

factually the same but who both do not receive the 16 level enhancement because of

difference in the names of prior convictions from state to state,” id.

       It is unnecessary for us to address Esparza’s arguments in detail for two reasons.

                                                6
First, Esparza does not dispute that his prior conviction fell within the scope of §

2L1.1(b)(1)(A) and thus required the district court to impose the sixteen-level

enhancement. Consequently, we see no basis for concluding that the sentence was

procedurally unreasonable. Second, the effect of the sixteen-level enhancement was

mitigated in Esparza’s case by the district court’s decision to vary downward from the

advisory guideline range based upon the sentencing factors outlined in § 3553(a). We

therefore cannot say that the district court abused its discretion in imposing the sentence,

or that the sentence imposed was substantively unreasonable in light of all the relevant

sentencing factors.

       Lastly, Esparza asserts that the district court erred in denying his motion for

downward departure on the basis of cultural assimilation. Our jurisdiction to review a

district court’s denial of a motion for downward departure is limited to “the very rare

circumstance that the district court states that it does not have any authority to depart

from the sentencing guideline range for the entire class of circumstances proffered by the

defendant.” United States v. Castillo, 140 F.3d 874, 887 (10th Cir. 1998). In other

words, we lack jurisdiction “to review a district court’s discretionary decision to deny a

motion for downward departure on the ground that a defendant’s [particular]

circumstances do not warrant the departure.” United States v. Sierra-Castillo, 405 F.3d

932, 936 (10th Cir. 2005). In this case, the district court did not conclude that it lacked

authority to depart downward on the general grounds of cultural assimilation. Instead, it

concluded that a downward departure for cultural assimilation was not warranted in

                                              7
Esparza’s case. Consequently, we lack jurisdiction to consider the district court’s denial

of Esparza’s motion.

       Counsel’s motion to withdraw is GRANTED and the appeal is DISMISSED.



                                                 Entered for the Court


                                                 Mary Beck Briscoe
                                                 Chief Judge




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