                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0465n.06

                                           No. 11-2432

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                                                                           FILED
UNITED STATES OF AMERICA,                            )                               May 01, 2012
                                                     )
                                                                               LEONARD GREEN, Clerk
       Plaintiff-Appellee,                           )
                                                     )
v.                                                   )       ON APPEAL FROM THE UNITED
                                                     )       STATES DISTRICT COURT FOR
RONY ALBERTO GARCIA-NAJERA,                          )       THE WESTERN DISTRICT OF
                                                     )       MICHIGAN
       Defendant-Appellant.                          )



       Before: MARTIN and CLAY, Circuit Judges; HOOD, District Judge.*


       PER CURIAM. Rony Alberto Garcia-Najera, who is represented by counsel, appeals his

conviction for illegally reentering the United States subsequent to a felony conviction.

       Garcia-Najera, a native and citizen of Guatemala, was removed from the United States in

October 2009 after being convicted of possessing cocaine, fleeing a police officer, and operating a

motor vehicle while intoxicated. In February 2011, Garcia-Najera was arrested for state traffic

violations, furnishing false information to a police officer, and resisting a police officer. Garcia-

Najera was subsequently arrested by federal authorities and charged with illegal reentry into the

United States subsequent to a felony conviction in violation of 8 U.S.C. § 1326(a) and (b)(1).

       Garcia-Najera pled guilty to the charge without the benefit of a plea agreement. A

presentence report calculated Garcia-Najera’s total offense level at ten and his criminal history

category at IV, resulting in an advisory sentencing guideline’s range of fifteen to twenty-one months


       *
       The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
                                             No. 11-2432
                                                 -2-

of imprisonment. The district court determined that the advisory sentencing guideline’s range was

properly calculated and imposed a sentence of twenty-one months of imprisonment with no term of

supervised release.

        Garcia-Najera’s appellate counsel has filed a motion to withdraw, in which he states that his

careful review of the record has led him to the conclusion that there are no legally non-frivolous

issues present in the appeal. Counsel accompanies his motion with a brief prepared pursuant to

Anders v. California, 386 U.S. 738, 744 (1967), in which he identifies challenges to Garcia-Najera’s

guilty plea and his sentence. Counsel concludes, however, that Garcia-Najera’s plea was voluntary

and that the district court imposed a reasonable sentence. Garcia-Najera has not responded to

counsel’s motion to withdraw, despite being advised of his right to do so. After undertaking an

independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 82–83 (1988), we agree

with counsel and grant the motion to withdraw because there are no arguable grounds for appeal that

are apparent in the record.

        Given that Garcia-Najera entered a guilty plea, he has waived his right to appeal any

constitutional violations occurring prior to his plea. He may only challenge whether his plea was

voluntarily and intelligently given. See Tollett v. Henderson, 411 U.S. 258, 267 (1973). A guilty

plea is valid if it is entered voluntarily and intelligently based on the totality of the circumstances.

Brady v. United States, 397 U.S. 742, 749 (1970).

        At his plea hearing, the magistrate judge, through an interpreter, placed Garcia-Najera under

oath and advised him that if he made false statements, he could be subject to penalties for perjury.

The magistrate judge questioned Garcia-Najera about his age, his education, his ability to read and

write, and his physical and mental health in order to determine whether he was competent to

comprehend the proceedings. The magistrate judge read the charge that Garcia-Najera was facing,
                                            No. 11-2432
                                                -3-

explained the penalties associated with the charge, and how Garcia-Najera’s sentencing guidelines

range would be calculated. Garcia-Najera confirmed that he had discussed these issues with his

attorney and that he was satisfied with counsel’s representation.

         The magistrate judge explained the rights associated with a jury trial that Garcia-Najera

would be waiving by entering a guilty plea. Garcia-Najera confirmed that he had no questions about

his rights, the charge, or the penalties it carried. He stated that he wished to plead guilty to the

charge. Garcia-Najera also confirmed that he was not pleading guilty as the result of threats, force,

or promises of leniency. The government stated the factual basis for the plea, and Garcia-Najera

agreed that the facts, as presented, were correct. Because the totality of the circumstances

demonstrates that there was a factual basis for Garcia-Najera’s plea and that the plea was voluntarily

and intelligently entered, no arguable issues may be raised on appeal in connection with the plea.

         The record further demonstrates that Garcia-Najera’s sentence was reasonable. We review

a district court’s sentence for both procedural and substantive reasonableness. Gall v. United States,

552 U.S. 38, 51 (2007). A sentence within the advisory guideline’s range is accorded a rebuttable

presumption of reasonableness. See United States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en

banc).

         Garcia-Najera cannot, in good faith, argue that his sentence was procedurally unreasonable.

He did not file objections to the presentence report, he acknowledged at his sentencing hearing that

his advisory guideline’s range was correctly calculated, and he did not request a departure. Further,

the district court recognized the advisory nature of the guidelines, considered the applicable 18

U.S.C. § 3553(a) factors, and explained that a term of imprisonment at the high end of the

guideline’s range was necessary given Garcia-Najera’s history of violence.
                                           No. 11-2432
                                               -4-

       With respect to the substantive reasonableness of the sentence, the district court listened to

the parties’ positions on sentencing, and Garcia-Najera made a statement to the court. The district

court considered the seriousness of the crime, Garcia-Najera’s characteristics, the need to provide

just punishment for the offense, the need to promote respect for the law, and the need for deterrence

and protection of the public. The district court concluded that a twenty-one month sentence was

sufficient, but not greater than necessary, to comply with the purposes of sentencing. Thus, Garcia-

Najera cannot raise an arguable issue that would demonstrate that his within-guidelines sentence was

unreasonable.

       After examining the record and discovering no non-frivolous issues for appeal, we grant

counsel’s motion to withdraw and affirm the district court’s judgment.
