                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                     August 29, 2008
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 08-2016
          v.                                        District of New Mexico
 JESUS MANUEL LECHUGA-                            (D.C. No. 07-CR-2092-WJ)
 CARILLO,

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before TACHA, KELLY and McCONNELL, Circuit Judges.


      Jesus Manuel Lechuga-Carrillo, a native and citizen of Mexico, pleaded

guilty to a one-count information charging him with a violation of 8 U.S.C. §

1326(a)(1), (a)(2), and (b)(2), reentry of a removed alien previously convicted of

a felony. He was sentenced to six months in prison, below the advisory range

under the United States Sentencing Guidelines. He timely appealed his sentence.

His counsel, James Baiamonte, filed an Anders brief and moved to withdraw as

counsel. See Anders v. California, 386 U.S. 738 (1967). Mr. Lechuga-Carrillo


      *
        This order and judgment is not binding precedent, except under the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 10 th
Cir. R. 32.1.
did not file a response. The government declined to submit a brief. Because we

find that neither Mr. Lechuga-Carrillo nor his counsel raises any non-frivolous

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

                                   I. Discussion

      Under Anders, a court-appointed defense counsel who believes that any

appeal would be “wholly frivolous” may request permission to withdraw, upon

submission of a brief to the client and the court indicating “anything in the record

that might arguably support the appeal.” Id. at 744. If we conclude, after a full

examination of the record before us, that the appeal is frivolous, we may grant the

motion to withdraw and dismiss the appeal. United States v. Calderon, 428 F.3d

928, 930 (10th Cir. 2005).

      Counsel’s Anders brief notes one possible basis for appeal. Counsel

suggests that although Mr. Lechuga-Carrillo received a below-Guidelines

sentence, he “could argue that his sentence was unreasonable and that the district

judge did not adequately consider the statutory concerns other than the advisory

guidelines expressed in 18 U.S.C. § 3553(a).” Aplt’s Br. 6.

      The transcript of the sentencing hearing and the presentence report (“PSR”)

adopted by the court establish that the court’s sentence was procedurally proper.

The court fully considered “the nature and circumstances of the offense and the

history and characteristics of the defendant,” 18 U.S.C. § 3553(a)(1), and




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understood the advisory nature of the guidelines, as demonstrated by its

conclusion that a below-Guidelines sentence was warranted in this case.

      After Gall v. United States, 128 S. Ct. 586 (2007), we review the

substantive reasonableness of a district court’s sentencing decisions, whether

inside or outside the Guidelines, under a “deferential abuse-of-discretion

standard.” United States v. Smart, 518 F.3d 800, 806 (10th Cir. 2008) (quoting

Gall, 128 S.Ct. at 591). A district court may, in its discretion, conclude that a

non-Guidelines sentence best serves the purposes of sentencing under § 3553(a),

on the condition that it “provide[s] reasoning sufficient to support the chosen

variance.” Smart, 518 F.3d at 807.

      In this case, nothing suggests that Mr. Lechuga-Carrillo’s sentence is

unreasonable. At sentencing, the district court accepted the Guidelines

calculation in Mr. Lechuga-Carrillo’s PSR, which correctly determined that Mr.

Lechuga-Carrillo’s total adjusted offense level was ten. That offense level

reflected a base level of eight, see U.S.S.G. § 2L1.2(a), a four-point enhancement

because Mr. Lechuga-Carrillo had previously been deported following a felony

conviction, see U.S.S.G. § 2L1.2(b)(1)(D), and a two-point adjustment for Mr.

Lechuga-Carrillo’s acceptance of responsibility, see U.S.S.G. § 3E1.1. Mr.

Lechuga-Carrillo’s criminal history category was II, owing to his prior felony

conviction in Alabama for possession of a forged instrument and a warrant that




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remained outstanding at the time of his arrest. Accordingly, Mr. Lechuga-

Carrillo’s Guidelines range was eight to fourteen months’ imprisonment.

      The district court sentenced Mr. Lechuga-Carrillo to only six months’

imprisonment. In so doing, it adopted a finding made in the PSR that Mr.

Lechuga-Carrillo’s criminal history category was over-represented by his

outstanding warrant, which resulted from his failure to pay a court-ordered fine in

connection with a prior felony conviction. This warrant, however, was quashed

when the district attorney was informed that the defendant had been deported

following the initial conviction. Had the warrant not been issued, Mr. Lechuga-

Carrillo would not have been under a criminal justice sentence when he illegally

reentered the United States, see U.S.S.G. § 4A1.2(m), and would therefore not

have received two points on his criminal history score, see U.S.S.G. § 4A1.1. As

a result, the PSR recommended and the district court concluded that a criminal

history category of I was more reflective of Mr. Lechuga-Carrillo’s criminal

history. This suggested a Guidelines range of six to twelve months. Mr.

Lechuga-Carrillo was sentenced at the bottom of this range.

      Given that the district court provided reasoning sufficient to support its

downward departure in this case, we see no plausible grounds for arguing that

imposing an already below-Guidelines sentence was beyond the district court’s

discretion.




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                                II. Conclusion

      Finding no non-frivolous arguments on appeal, we GRANT counsel’s

motion to withdraw. The appeal from the judgment of the United States District

Court for the District of New Mexico is DISMISSED.

                                                 Entered for the Court,

                                                 Michael W. McConnell
                                                 Circuit Judge




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