                                                                                 FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                            October 8, 2015
                                     TENTH CIRCUIT
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court


    UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

    v.                                                       No. 15-2028
                                                   (D.C. No. 2:14-CR-02972-RB-1)
    HILARIO MARTINEZ-GUTIERREZ,                           (D. New Mexico )

          Defendant - Appellant.




                                  ORDER AND JUDGMENT*


Before TYMKOVICH, Chief Judge, HARTZ, and BALDOCK, Circuit Judges.


         Defendant Hilario Martinez-Gutierrez pleaded guilty to a one-count information

charging him with illegal reentry of a removed alien. See 8 U.S.C. § 1326. The district

court sentenced him to 40 months’ imprisonment. On appeal, Defendant’s counsel filed

*
  After examining the brief and appellate record, this panel has determined unanimously
to honor the party’s request for a decision on the brief without oral argument. See Fed. R.
App. P. 34(f); 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 This order and judgment is not binding precedent, except under the doctrines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.
an Anders brief and moved to withdraw as counsel. See Anders v. California, 386 U.S.

738 (1967). Under the Supreme Court’s decision in Anders, defense 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); see also 10th Cir. R. 46.4(B)(1). Defendant and the

government were given the opportunity to respond to counsel’s filings but neither did so.

After conducting our own “full examination of all the proceedings,” Anders, 386 U.S. at

744, we agree with counsel that there are no nonfrivolous issues for appeal. Exercising

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

grant counsel’s motion to withdraw.

I.     BACKGROUND

       On August 15, 2014, United States Border Patrol agents apprehended Defendant

near the port of entry in Columbus, New Mexico. He admitted that he was a citizen of

Honduras illegally in the United States. Defendant had previously been convicted of

illegal reentry of a deported alien in the Eastern District of New York in 2012 and

sentenced to 40 months’ imprisonment and three years’ supervised release. On

August 29, 2014, Defendant pleaded guilty to the one-count information. Because he had

previously been deported following a conviction for an aggravated felony (a 1999 Florida

state-court conviction of battery and false imprisonment), he faced a potential sentence of

up to 20 years’ imprisonment. See 8 U.S.C. § 1326(b)(2).


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       Under the applicable sentencing guidelines, illegal reentry of a deported alien

carried a base offense level of eight. Defendant qualified for a 16-level enhancement

because he had been previously deported after committing a felony crime of violence.

See USSG § 2L1.2(b)(1)(A). After a three-level reduction for acceptance of

responsibility, see id. § 3E1.1(a),(b), his final offense level was 21. Because his criminal-

history category was IV, see id. § 4A1.1, his guidelines sentencing range was 57 to 71

months’ imprisonment. See id. Ch. 5 Pt. A.

       Before sentencing, Defendant and his counsel reviewed the presentence report.

He made no objections to the report, and the district court thus adopted the report’s

factual findings. Defendant asked the court to vary downward to 40 months based on the

date and circumstances of the sentence leading to the 16-level enhancement. The

government opposed such a variance, and asked for a 57-month sentence, at the bottom

of the guidelines range. The court sentenced him to 40 months’ imprisonment, stating

that such a sentence “is sufficient but not greater than necessary to meet the ends of the

criminal justice system.” R., Vol. III at 30. Defendant timely appealed.

II.    DISCUSSION

       An appeal in this case would have merit only if the guilty plea was invalid or if the

sentence was unreasonable. After conducting an independent review of the record, we

agree with counsel that neither issue presents a nonfrivolous ground for appeal.

       A guilty plea must be knowing, intelligent, and voluntary to be valid. See United

States v. Gigot, 147 F.3d 1193, 1197 (10th Cir. 1998). Fed. R. Crim. P. 11 “is designed
                                             3
to assist the district judge in making the constitutionally required determination that a

defendant’s guilty plea is truly voluntary.” McCarthy v. United States, 394 U.S. 459, 465

(1969). In this case the magistrate judge complied with Rule 11. The judge verified a

factual basis for the plea; questioned Defendant to confirm that he understood the charges

against him; informed him of the maximum possible penalty provided by law and of the

consequences of the plea, including immigration consequences; and otherwise ensured

that the plea was freely, voluntarily, and intelligently made. After independent review of

the plea hearing, we see no nonfrivolous ground for appealing the guilty plea.

       Nor is there any potentially meritorious ground for appealing Defendant’s

sentence. We review sentences for procedural and substantive reasonableness. See

United States v. Balbin-Mesa, 643 F.3d 783, 786‒87 (10th Cir. 2011). The district court

correctly calculated the guideline range, and committed no other procedural errors

meriting review. On substantive-reasonableness review, Defendant’s below-guideline

sentence is entitled to “a rebuttable presumption of reasonableness” when “challenged by

the defendant as unreasonably harsh.” Id. at 788 (internal quotation marks omitted).

Nothing apparent in our review of the record rebuts that presumption. The district court

varied downward based on the age of Defendant’s felony crime of violence and his

family circumstances. The court said it considered the factors under 18 U.S.C. § 3553(a)

and that it was imposing a sentence “sufficient but not greater than necessary to meet the

ends of the criminal justice system.” R., V. III at 30. Any appeal of Defendant’s

sentence would be frivolous.
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III.   CONCLUSION

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

                                     ENTERED FOR THE COURT


                                     Harris L Hartz
                                     Circuit Judge




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