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

                             FOR THE TENTH CIRCUIT                           August 31, 2018
                         _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,                                  No. 18-2029
                                                   (D.C. No. 2:18-CR-00047-WJ-1)
v.                                                        (D. New Mexico)

HECTOR MANUEL CORDOVA-SOTO,

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
                  _________________________________


      Hector Manuel Cordova-Soto filed a counseled notice of appeal challenging the

imposition of a twenty-one-month term of imprisonment for violating the terms of his

supervised release. His counsel has since moved to withdraw from the case under Anders

v. California, 386 U.S. 738 (1967), asserting there are no non-frivolous grounds for

appeal. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and




      *
         After examining counsel’s brief, Mr. Cordova-Soto’s response letter, and the
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order and judgment is not binding precedent, except under the doctrines of law of the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.
finding no grounds for appeal that are not “wholly frivolous,” we grant counsel’s motion

to withdraw, and we dismiss the appeal.

                                   I. BACKGROUND

       In 2014, Mr. Cordova-Soto pleaded guilty to one count of illegal reentry, in

violation of 8 U.S.C. § 1326(a), (b)(1). He was sentenced to thirty months in prison and

three years of supervised release. Upon his release from prison, he was deported to

Mexico.

       In December 2017, Mr. Cordova-Soto, having returned to the United States,

pleaded guilty to yet another count of illegal reentry. That most recent reentry offense

was a violation of the terms of his supervised release, which provided that Mr. Cordova-

Soto “shall not commit another federal, state, or local crime during the term of

supervision.” 1 ROA at 10.

       In February 2018, the district court conducted a joint hearing for (1) sentencing on

Mr. Cordova-Soto’s 2017 reentry offense in a case docketed as 2:17–cr–03517–WJ (“17–

cr–3517”), and (2) revocation of supervised release relating to Mr. Cordova-Soto’s 2014

reentry offense in a case docketed as 2:18–cr–00047–WJ (“18–cr–47”). As to case 17–

cr–3517, the district court accepted a plea agreement and sentenced Mr. Cordova-Soto to

twenty-four months’ imprisonment. As to case 18–cr–47, the district court found that

Mr. Cordova-Soto violated his term of supervised release when he illegally reentered the

country. The district court sentenced Mr. Cordova-Soto to twenty-one months’

imprisonment for the violation of supervised release, to run consecutively to the term



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imposed in case 17–cr–3517. The district court declined to impose another term of

supervised release on Mr. Cordova-Soto’s supervised release violation.

       Mr. Cordova-Soto’s counseled notice of appeal references only case number 18–

cr–47. Accordingly, only case 18–cr–47 is before us. The same counsel who filed

Mr. Cordova-Soto’s notice of appeal now moves to withdraw because there are no non-

frivolous grounds for appeal.

                                    II. DISCUSSION

       Under Anders, counsel may “request permission to withdraw 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). In doing so, “counsel must submit a brief to the client and the appellate

court indicating any potential appealable issues based on the record.” Id. We must then

independently examine the record to determine whether the defendant’s claims are

“wholly frivolous,” and, if so, we may grant counsel’s motion to withdraw and dismiss

the appeal. Id.

       Counsel’s Anders brief identifies one potential basis for appeal: that Mr. Cordova-

Soto’s sentence was substantively unreasonable. We review a challenge to a revocation

sentence for abuse of discretion, reviewing factual findings for clear error and legal

conclusions de novo. United States v. Tsosie, 376 F.3d 1210, 1217–18 (10th Cir. 2004),

abrogated on other grounds by Tapia v. United States, 564 U.S. 319 (2011). A district

court exceeds its discretion “when it renders a judgment that is arbitrary, capricious,

whimsical, or manifestly unreasonable.” United States v. Regan, 627 F.3d 1348, 1352

                                             3
(10th Cir. 2010) (quotation marks omitted). A sentence must be “reasoned and

reasonable.” United States v. Contreras–Martinez, 409 F.3d 1236, 1241 (10th Cir. 2005)

(quotation marks omitted). “[A] ‘reasoned’ sentence is one that is ‘procedurally

reasonable’; and a ‘reasonable’ sentence is one that is ‘substantively reasonable.’” United

States v. McBride, 633 F.3d 1229, 1232 (10th Cir. 2011). “Procedural review asks

whether the sentencing court committed any error in calculating or explaining the

sentence.” United States v. Alapizco–Valenzuela, 546 F.3d 1208, 1214–15 (10th Cir.

2008). “[S]ubstantive reasonableness addresses whether the length of the sentence is

reasonable given all the circumstances of the case in light of the factors set forth in 18

U.S.C. § 3553(a).” United States v. Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008)

(internal quotation marks omitted). We presume that a sentence following revocation of

supervised release that falls within the range suggested by the United States Sentencing

Commission’s policy statements is reasonable. McBride, 633 F.3d at 1233.

       In this case, the advisory Guidelines range for Mr. Cordova-Soto on revocation is

twenty-one to twenty-seven months.1 See U.S.S.G. § 7B1.4(a) (establishing Guidelines

range of twenty-one to twenty-seven months for Grade B supervised release violation and

category VI criminal history). After considering the advisory range, as well as

Mr. Cordova-Soto’s characteristics and his “lengthy criminal history,” 2 ROA at 11, the

district court imposed a sentence at the low end of the advisory range—twenty-one

       1
         During Mr. Cordova-Soto’s sentencing hearing, the district court mistakenly
identified the Guidelines range as twenty-one to twenty-four months. This
misstatement, however, favored Mr. Cordova-Soto and proved harmless where the
district court imposed a twenty-one month sentence, a sentence at the bottom of both
the correct range and the misstated range.
                                              4
months, to run consecutively to the time imposed in case 17–cr–3517. Thus, the district

court properly considered both the advisory range from the Sentencing Commission’s

policy statements and the § 3553(a) factors before imposing a within-guidelines sentence.

       Counsel’s Anders brief discusses Mr. Cordova-Soto’s request to challenge the

district court’s decision to impose a consecutive sentence. “Under 18 U.S.C. § 3584(a), a

district court has the discretion to impose consecutive or concurrent sentences.” United

States v. Rodriguez–Quintanilla, 442 F.3d 1254, 1256 (10th Cir. 2006) (citation omitted).

Section 3584(b) provides that “[t]he court, in determining whether the terms imposed are

to be ordered to run concurrently or consecutively, shall consider . . . the factors set forth

in section 3553(a).” And the Sentencing Commission’s policy statement states that “[a]ny

term of imprisonment imposed upon the revocation of probation or supervised release

shall be ordered to be served consecutively to any sentence of imprisonment that the

defendant is serving[.]” U.S.S.G. § 7B1.3(f).

       In the Anders brief, counsel concedes the district court clearly considered the

factors of 18 U.S.C. § 3553(a) and the advisory statements of the Sentencing

Commission. And the district court sentenced Mr. Cordova-Soto consistent with their

guidance. Therefore, counsel concedes it was within the sentencing court’s discretion to

order that Mr. Cordova-Soto’s sentence of the supervised release violation run

consecutively to the sentence on the 2017 reentry conviction. We agree. The record

provides no basis to conclude that the sentence is procedurally or substantively

unreasonable. Nor can we discern any other potentially meritorious issues in our

independent review of the record.

                                              5
       One final point deserves mention. In a hand written pro se letter to this court filed

after receipt of his counsel’s Anders brief, Mr. Cordova requests that we continue with

his appeal and provide him with the assistance of another appointed attorney to help him

with his case. His letter also informs us that he is dissatisfied with his attorney’s

performance:

       During the day to sign the guilty or not guilty-plea my assigned attorney
       did not show[] up and I was hurried to signed [sic] guilty plea on all the
       charges by another attorney assigned to cover for her. In [the] days before
       my sentence my regular appointed attorney indicated that I had 3 years[’]
       probation from a prior sentence and would be run concurrent with whatever
       sentence I receive. The Honorable Judge gave me 2 sentences, 24 months
       for re-entry and 21 months for probation violation[,] a total of 45 months. I
       feel that my sentence was more than I expected and what my attorney
       advised me [it] would be.

Response filed by Hector Manuel Cordova-Soto, Docket No. 10566798. We are troubled

by Mr. Cordova-Soto’s account. This appeal, however, is not the proper forum to

consider his allegations, which we construe as a possible claim for ineffective assistance

of counsel in case number 17–cr–3517. In the event Mr. Cordova-Soto has filed (or will

file) a timely motion under 28 U.S.C. § 2255 in case number 17–cr–3517, we trust the

district court will consider in the first instance the merits of any ineffective-assistance

claim that Mr. Cordova-Soto raises. See United States v. Erickson, 561 F.3d 1150, 1170

(10th Cir. 2009) (stating that § 2255 motions are the preferred vehicle for considering

ineffective-assistance-of-counsel claims). But the alleged ineffective assistance of

counsel is not grounds to continue with this direct appeal.




                                               6
                        III. CONCLUSION

We GRANT counsel’s request to withdraw and we DISMISS the appeal.

                                 Entered for the Court


                                 Carolyn B. McHugh
                                 Circuit Judge




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