                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                     January 24, 2007
                      UNITED STATES CO URT O F APPEALS
                                                                   Elisabeth A. Shumaker
                                   TENTH CIRCUIT                       Clerk of Court



 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
 v.                                                     No. 06-8050
                                                  (D.C. No. 06-CR-5-ABJ)
 LEO NIDES A CO STA -QUINONES,                         (D. W yoming)
 a/k/a M ario A guirre-Gonzales,

          Defendant-Appellant.



                                OR DER AND JUDGM ENT *


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


      Leonides Acosta-Quinones pled guilty to illegally re-entering the United

States after a previous deportation. See 8 U.S.C. § 1326(a)(1)-(2), (b)(2). He was

sentenced to 87 months of imprisonment, followed by three years of supervised

release, and ordered to pay a $100 special assessment. On appeal, M r. Acosta-

Quinones’s counsel filed an Anders brief and moved to withdraw as counsel. See




      *
        After examining defense counsel’s brief and the appellate record, this
panel has determined unanimously that oral argument would not materially assist
the determination of this appeal. See Fed R. App. P. 34(a)(2); 10th Cir. R.
34.1(G ). The case is therefore ordered and 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This order and judgment is not binding precedent except under the doctrines of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.
Anders v. California, 386 U .S. 738 (1967). M r. Acosta-Quinones filed a response

to his counsel’s Anders brief urging reversal of his sentence on the ground that

the district court unreasonably refused to grant him a downward departure in light

of the factors contained in 18 U.S.C. § 3553(a). The government declined to file

a response. For the reasons set forth below, we conclude that there are no

meritorious issues for appeal, and we therefore grant the motion to withdraw and

dismiss the appeal.

                                     t    t    t

      M r. Acosta-Quinones w as indicted for illegally entering the U nited States,

and illegally re-entering after previously being deported, in violation of 8 U.S.C.

§§ 1325(a) and 1326(a)(1)-(2), (b)(2). M r. Acosta-Quinones initially pled not

guilty but subsequently rescinded that plea and entered into an agreement with the

government. Pursuant to his agreement, M r. Acosta-Quinones agreed to plead

guilty to the illegal re-entry charge under Section 1326 in exchange for dismissal

of the illegal entry charge under Section 1325. At the hearing on his plea

agreement, M r. Acosta-Quinones admitted that he (1) was a citizen of M exico; (2)

entered the country illegally on January 3, 2006; (3) w as residing illegally in

W yoming at the time of his arrest on January 8, 2006; and (4) w as previously

deported in 2004. Presentence Report (“PSR”) at 5-7; Transcript of Change of

Plea Hearing held on April 10, 2006 (“Tr. Plea Hearing”) at 15-18.




                                         -2-
      Although only 31 years old, M r. Acosta-Quinones has amassed a lengthy

criminal record, accumulating at least 8 criminal convictions since turning 18.

Among these are convictions of first degree burglary of a dwelling, attempted

possession of a controlled substance, and alien in possession of a firearm. PSR at

5-7; Transcript of Sentencing Hearing held on June 19, 2006 (“Tr. Sentencing

Hearing”) at 5-7.

      The United States Sentencing Guidelines (the “Guidelines”) suggest terms

of imprisonment based upon a combination of (1) the nature of the offense

comm itted by the defendant, the “offense level,” and (2) the defendant’s criminal

history, the “criminal history category.” See U.S.S.G. § 1A1.1. Consonant with

the Guidelines, courts typically first “assess the applicable offense level” and

later “assess the applicable criminal history category.” United States v.

Alessandroni, 982 F.2d 419, 421 (10th Cir. 1992); see also U.S.S.G. § 1B1.1.

      The base offense level for illegal re-entry into the United States was 8 at

the time of M r. A costa-Q uinones’s sentencing. See U.S.S.G. § 2L1.2 (Nov.

2005). However, Section 2L1.2 provided for a 16-level enhancement to this

offense level for cases in which the defendant was deported after receiving a

felony conviction for a crime of violence. Id. In this case, M r. Actosta-

Q uinones’s conviction of first degree burglary, a crime of violence, and his two

subsequent deportations since that conviction, made him eligible for the 16-level

enhancement. PSR 6-7. The Guidelines also provided a downward departure of

                                         -3-
three levels because he pled guilty to this illegal re-entry. See U.S.S.G.

§ 1B1.1(e). Thus, M r. Acosta-Quinones’s resulting offense level was 21.

      In calculating M r. Acosta-Quinones’s criminal history category, the

Guidelines indicated a starting point of nine criminal points based on his criminal

history, an enhancement of two points due to his illegal re-entry while on a term

of supervised release, and an enhancement of one point because the defendant

comm itted a crime (the illegal re-entry) within two years of release from

imprisonment. See U.S.S.G. § 4A1.1(d), (e). M r. Acosta-Quinones thus scored a

total of 12 criminal history points which placed him in criminal history category

V. See PSR at 7.

      Based on the combination of M r. Acosta-Quinones’s criminal history

category and offense level, the Guidelines suggested imprisonment of 70 to 87

months. See PSR at 10. The district court sentenced him at the high end of this

range, to 87 months of imprisonment.

                                     t    t    t

      Counsel may “request permission to w ithdraw [from an appeal] 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)

(citing Anders, 386 U.S. at 744). This process requires counsel to

      submit a brief to the client and the appellate court indicating any
      potential appealable issues based on the record. The client may then
      choose to submit arguments to the court. The [c]ourt must then

                                         -4-
      conduct a full examination of the record to determine whether
      defendant’s claims are wholly frivolous. If the court concludes after
      such an examination that the appeal is frivolous, it may grant
      counsel’s motion to withdraw and may dismiss the appeal.

Id. (citing Anders, 386 U.S. at 744).

      In his Anders brief, counsel notes that the only possible bases for appeal

would be that (1) the plea agreement is invalid; (2) the use of M r. Acosta-

Quinones’s criminal record to calculate his criminal history category and to

enhance his sentence under the Guidelines was improper “double counting”; (3)

the district court founds facts which enhanced his sentence in violation of United

States v. Booker, 543 U.S. 220 (2005); and (4) the district court committed error

in denying his request for a downward departure of his sentence by failing to

consider adequately the 18 U.S.C. § 3553(a) statutory factors. Our review

confirms counsel’s conclusion that no basis in law or fact exists for any of these

arguments.

      Our precedent provides that for a guilty plea to be valid, it must be

knowingly, intelligently, and voluntarily made. United States v. Gigot, 147 F.3d

1193, 1197 (10th Cir. 1998); see also Fed. R. Crim. P. 11. M r. Acosta-Quinones

cannot read and write in English but can do so in Spanish. Tr. Plea Hearing at 4.

The plea agreed to by M r. Acosta-Quinones w as translated into Spanish and both

a Spanish and English version were filed with the district court. Id. at 3. At the

hearing, the district court fulfilled the requirements of Rule 11 and those



                                         -5-
announced in Gigot to ensure the validity of the plea. See id. at 5-9 (in open

court, the district judge personally questioned the defendant and confirmed that

the defendant fully understood the charges against him, the consequences of the

plea, and ensured that the plea was voluntary and made of his own free will).

Thus, any challenge to the plea’s validity would be frivolous.

      M r. Acosta-Quinones did not argue below that use of his prior criminal

history to calculate his criminal history category and enhance his offense level

was improper double counting; thus, our review on this issue can only be for plain

error. See United States v. Burbage, 365 F.3d 1174, 1180 (10th Cir. 2004). In

any event, such an argument is wholly without merit. The Guidelines expressly

state in comm entary to Section 2L1.2 that, in computing a defendant’s criminal

history category, a “conviction taken into account [in calculating an offense level

enhancement] is not excluded from consideration of whether that conviction

receives criminal history points.” U .S.S.G. § 2L1.2 cmt. 6. W e have, moreover,

routinely upheld as reasonable the use of prior convictions to calculate both the

criminal history category and a sentence enhancement where, as here, the

Guidelines authorize it. See Alessandroni, 982 F.2d at 421; United States v.

Florentino, 922 F.2d 1443, 1447-48 (10th Cir. 1990); see also United States v.

M urriega-Santos, 2006 W L 3291683 at *2 (10th Cir. 2006) (unpub.) (holding that

double counting under Section 2L1.2 is permissible); United States v. Hernandez-

Juarez, 185 Fed. Appx. 758, 762-63 (10th Cir. 2006) (unpub.) (same).

                                        -6-
      W e also agree with counsel that a challenge to defendant’s sentence based

on the Supreme Court’s decision in Booker would be frivolous. The district court

may not impose a sentence above the statutory maximum unless the jury found

the facts that increase the penalty beyond a reasonable doubt, the defendant

admitted such facts, or the fact is a prior conviction. Booker, 543 U.S. at 244.

Our review of a defendant’s sentence post-Booker follows the two-step analytical

framew ork enunciated in United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir.

2006). The first step requires us to determine whether the district court correctly

calculated the relevant advisory Guidelines range. Id. In this case, M r. Acosta-

Quinones pled guilty and admitted all facts necessary to convict under the statute.

See 8 U.S.C. § 1326. The judge sentenced M r. Acosta-Quinones to 87 months of

incarceration, well below the 20-year maximum provided by the statute. Id.

Further, given M r. Acosta-Quinones’s undisputed criminal history, the district

court correctly determined that his criminal history warranted 12 points placing

him in category V, and that his total offense level was 21. Based on these factors,

the resulting Guidelines range of imprisonment was 70 to 87 months. M r. Acosta-

Quinones was sentenced to 87 months, admittedly at the high end of the

Guidelines range, but nonetheless clearly within it. Thus, there is no error under

step one of Kristl.

      M r. Acosta-Quinones next argues that the district court erred under step

two of Kristl by refusing to grant a downward departure from that contained in

                                        -7-
the Guidelines due to the length of time since he last committed a violent crime;

the purpose of his re-entry; and the lack of any violent conduct associated with

his re-entry conviction. Under step two, we apply a presumption of

reasonableness to sentences falling within the ranges specified by the G uidelines,

the case here. Kristl, 437 F.3d at 1054. M r. Acosta-Quinones claims that the

district court unreasonably failed to consider adequately the factors set forth in 18

U.S.C. § 3553(a). But at the sentencing hearing, the district court expressly

stated that it “looked at the factors set forth in Section 3553(a)” and found that

the defendant had “accumulate[d] a very substantial criminal history” while in the

United States; that this prior history distinguished him from other defendants that

came solely for economic reasons and avoided law enforcement; that lengthy

sentences do not appear to deter the defendant from violating the law; and, thus,

that the 87 month sentence recommended by the G uidelines was appropriate. Tr.

Sentencing Hearing at 10-15; see also 18 U.S.C. § 3553(a) (factors to be

considered in imposing a sentence, among other things, include: the nature of the

offense, the defendant’s criminal history, and the need for the sentence imposed

to deter the criminal conduct). Given these circumstances, we cannot help but

conclude that the district court’s decision to impose a sentence at the high end of

the G uidelines was reasonable under Kristl’s second step. 1



      1
          W e note, however, that even if there were no presumption of
                                                                         (continued...)

                                         -8-
                                   t     t    t

      For the foregoing reasons, we D ISM ISS the appeal and GRANT counsel’s

motion to withdraw.


                                       ENTERED FOR THE COURT




                                       Neil M . Gorsuch
                                       Circuit Judge




      1
        (...continued)
reasonableness attaching to a Guidelines-based sentence, our decision would not
be altered in this case as we independently find the sentence imposed here
appropriate in light of the applicable Section 3553(a) factors.

                                        -9-
