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

                           FOR THE TENTH CIRCUIT                       October 7, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

v.                                                        No. 13-6175
                                                  (D.C. No. 5:13-CR-00068-F-1)
ESPIRIDION DELEON-VICTORINO,                              (W.D. Okla.)

             Defendant - Appellant.


                            ORDER AND JUDGMENT*


Before GORSUCH, O’BRIEN, and PHILLIPS, Circuit Judges.


      Espiridion Deleon-Victorino pleaded guilty to unlawful reentry of a removed

alien subsequent to an aggravated felony conviction. The district court sentenced

him to 60 months in prison, which was toward the low end of the applicable 57-to-71

month guideline range, and Mr. Deleon-Victorino appealed. His attorney has since

filed an Anders brief and moved to withdraw, asserting there are no non-frivolous

issues for appeal. See Anders v. California, 386 U.S. 738 (1967). This court twice

*
      After examining the briefs and 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 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
notified Mr. Deleon-Victorino of his opportunity to file a pro se brief, but he has not

responded and the time to do so has passed. We have independently reviewed the

record and agree with counsel’s assessment. Accordingly, exercising jurisdiction

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we grant the motion to withdraw

and dismiss the appeal.

      Under Anders, defense counsel may move to withdraw if, after conscientiously

examining the case, counsel determines that an appeal would be “wholly frivolous.”

386 U.S. at 744. “[C]ounsel must submit a brief to the client and the appellate court

indicating any potential appealable issues based on the record.” United States v.

Calderon, 428 F.3d 928, 930 (10th Cir. 2005). The client may also file a pro se

response. Anders, 386 U.S. at 744. We then independently examine the record to

determine “whether the case is wholly frivolous.” Id. If we agree with counsel’s

assessment, we grant the motion to withdraw and dismiss the appeal. Id.

      Mr. Deleon-Victorino’s attorney has identified several potential issues

challenging the procedural and substantive reasonableness of his sentence. First, she

notes that the pre-sentence investigation report (PSR) separately assessed criminal

history points for two prior sentences that resulted from a single arrest. She

concedes, however, that this issue is frivolous because USSG § 4A1.2(a)(2) expressly

states, “If there is no intervening arrest, prior sentences are counted separately unless

(A) the sentences resulted from offenses contained in the same charging instrument;

or (B) the sentences were imposed on the same day.” There was no intervening arrest


                                          -2-
here and neither exception applies. Mr. Deleon-Victorino was sentenced in federal

court on January 21, 2003, for the offense of illegal reentry, and he was separately

sentenced in a Texas state court on February 14, 2003, for the offense of tampering

with a government record. See R., Vol. 2 at 19 (PSR para. 49-50). The PSR

correctly assessed separate criminal history points for each sentence.

      Counsel also submits that the district court’s statement of reasons for the

sentence imposed was not sufficiently detailed. Yet she recognizes that “[w]here a

district court imposes a sentence falling within the range suggested by the

Guidelines, Section 3553(c) requires the court to provide only a general statement of

the reasons for its imposition of the particular sentence.” United States v. Chavez,

723 F.3d 1226, 1232 (10th Cir. 2013) (internal quotation marks omitted). At

sentencing, the district court heard counsel’s arguments, explained why he chose a

sentence within the 57-to-71 month guideline range without a departure or variance,

and imposed a sentence of 60 months, taking into account all of the factors of

18 U.S.C. § 3553(a). We agree with counsel that the district court’s explanation was

legally adequate.

      Additionally, counsel posits that the sentence is substantively unreasonable

because Mr. Deleon-Victorino’s base offense level was increased by sixteen levels

pursuant to USSG § 2L1.2(b)(1)(A)(vii) because he was previously removed after an

alien smuggling offense. Although a sentence within a correctly calculated guideline

range is presumptively reasonable, see Chavez, 723 F.3d at 1233, counsel suggests


                                         -3-
that § 2L1.2 places unfair emphasis on a defendant’s criminal history and lacks

empirical support for any sentencing objective. She acknowledges, however, that we

have squarely rejected this argument. See United States v. Alvarez-Bernabe,

626 F.3d 1161, 1166 (10th Cir. 2010). Counsel also offers various mitigating

circumstances that might have justified a lesser sentence, only some of which were

presented to the district court, though none demonstrate that the sentence imposed

was substantively unreasonable. See United States v. McComb, 519 F.3d 1049, 1053

(10th Cir. 2007) (“[T]here will be a range of possible outcomes the facts and law at

issue can fairly support.”).

      Mr. Deleon-Victorino has failed to offer any non-frivolous issues and our

independent review confirms there are none. Accordingly, we grant defense

counsel’s motion to withdraw and dismiss this appeal.


                                               Entered for the Court


                                               Gregory A. Phillips
                                               Circuit Judge




                                         -4-
