                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                    UNITED STATES CO URT O F APPEALS
                                                                    November 1, 2007
                                                                   Elisabeth A. Shumaker
                                 TENTH CIRCUIT                         Clerk of Court



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

               Plaintiff-Appellee,                       No. 07-2029
          v.                                          (D. New M exico)
 GABR IEL JUA REZ-M ORA LES,                   (D.C. No. 06-CR-01645-M CA)

               Defendant-Appellant.




                            OR D ER AND JUDGM ENT *


Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. **


      Gabriel Juarez-M orales pleaded guilty to one count of unlawful re-entry of

a deported alien previously convicted of an aggravated felony, a violation of 8

U.S.C. § 1326(a)(1), (a)(2), and (b)(2). The district court calculated M r. Juarez-

M orales’ sentencing range at forty-six to fifty-seven months but granted his




      *
         This order and judgment is not binding precedent except under the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.


      **
          After examining the briefs and appellate record, this panel has
determined unanimously to grant the parties’ request for a decision on the briefs
without oral argument. See F ED . R. A PP . P. 34(f) and 10 TH C IR . R. 34.1(G). The
case is therefore ordered submitted without oral argument.
motion for a downw ard variance and imposed a sentence of thirty-two months’

incarceration.

      On appeal, M r. Juarez-M orales’ counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738, 744 (1967). Counsel argues that (1) M r.

Juarez-M orales’ criminal history score over-represents his actual criminal history;

(2) despite the fact that the district court granted his motion for a downward

variance, a still greater variance is w arranted; and (3) the district court should

have considered the facts underlying his 1998 California conviction for attempted

first-degree residential burglary.

      All of M r. Juarez-M orales’ arguments concern the 1998 attempted

residential burglary conviction. Applying USSG § 2L1.2(b)(1)(A)(ii), the

presentence report characterized that conviction as a crime of violence. The

district court agreed with that characterization and imposed a sixteen-level

increase in the offense level. 1 In granting M r. Juarez-M orales’ motion for a

downward variance, the district court noted that the attempted burglary conviction

occurred in 1998, when he was nineteen. The court also observed that he had


      1
          USSG 2L1.2(b)(1)(A)(ii) provides for a sixteen-level increase in the
offense level if the defendant has been convicted of “a crime of violence.” The
term is defined to include “burglary of a dwelling.” USSG cmt. n.1 (B)(iii). The
comm entary further explains that “[p]rior convictions of offenses counted under
subsection (b)(1) include the offenses of aiding and abetting, conspiring, and
attempting to commit such offenses.” USSG § 2L1.2 cmt. n.5; see also United
States v. Reina-Rodriguez, 468 F.3d 1147, 1151-52 (9th Cir. 2006) (stating that
“an attempt to commit these crimes of violence [listed in § 2L1.2 cmt. n.1(B)(iii)]
is itself a crime of violence”).

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“demonstrated a work history” and vocational skills. Rec. Supp. vol. I, at 19-20.

The court therefore sentenced him to a term of imprisonment fourteen months

below the advisory Guideline range.

      Upon review of the record and the applicable law, we conclude that M r.

M r. Juarez-M orales has failed to advance a non-frivolous challenge to his

sentence. The court considered the relevant sentencing factors under 18 U.S.C. §

3553(a). See United States v. Pruitt, 487 F.3d 1298, 1303 (10th Cir. 2007). M r.

Juarez-M orales has identified no evidence or legal authority that requires a

further downward variance.

      Additionally, M r. Juarez-M orales’ contention that the district court erred in

refusing to consider the particular circumstances underlying his attempted

burglary conviction is not persuasive. In determining w hether a prior offense

constitutes a crime of violence under USSG § 2L1.2, we generally follow a

categorical approach, “‘looking only to the statutory definitions of the prior

offenses, and not to the particular facts underlying those convictions.’” United

States v. Perez-Vargas, 414 F.3d 1282, 1284 (10th Cir. 2005) (quoting

Taylor v. United States, 495 U.S. 575, 600 (1990)). Only if the statute defining

the prior offense is ambiguous or encompasses both violent and non-violent

crimes may we look beyond the statute to certain records of the prior proceeding.

Id. Here, M r. Juarez-M orales has not argued that these exceptions are applicable.




                                         -3-
Thus, the district court did not err in refusing to consider the circumstances

underlying the conviction.

      Accordingly, we DISM ISS this appeal.



                                 Entered for the Court,



                                 Robert H. Henry
                                 United States Circuit Judge




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