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

                                     TENTH CIRCUIT                            July 31, 2012

                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court

    UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                              No. 11-3110
    v.                                             (D.C. No. 2:10-CR-20112-01-JWL)
                                                                (D. Kan.)
    BALTAZAR CARRILLO-TORRES,

          Defendant-Appellant.


                                ORDER AND JUDGMENT*


Before MURPHY, EBEL and HARTZ, Circuit Judges.


         On March 31, 2011, Baltazar Carrillo-Torres pled guilty to one count of illegal re-

entry by a previously deported alien after conviction for an aggravated felony, in

violation of 8 U.S.C. § 1326(a) and (b)(2). Pursuant to the recommendation in the

Presentence Investigation Report (“PSR”)—to which Mr. Carrillo-Torres never objected

below—the district court sentenced Mr. Carrillo-Torres to thirty-three months’

*
 Having examined the briefs and the appellate record, this panel unanimously determines
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). This 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 This Order and Judgment is not binding precedent, except under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. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and judgment may
be cited consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
imprisonment followed by a three-year term of supervised release. In this direct criminal

appeal, appointed counsel for Mr. Carrillo-Torres argues in an Anders brief that the

sentence imposed was substantively unreasonable, and moves to withdraw as counsel.1

In supplemental pro se briefing, Mr. Carrillo-Torres argues that the district court erred by

(1) considering his prior state conviction as an “aggravated felony” for purposes of

sentencing under 8 U.S.C. § 1326; and (2) considering that prior conviction to be a “drug

trafficking offense” under U.S.S.G. § 2L1.2, resulting in enhancement of his advisory

sentencing range under the Federal Sentencing Guidelines (“Guidelines”). Having

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we AFFIRM. We also

grant defense counsel’s motion to withdraw.2

     1. Whether the sentence was substantively reasonable


1
    See Anders v. California, 386 U.S. 738 (1967).
2
  [Anders] authorizes counsel to request permission to withdraw where counsel
conscientiously examines a case and determines that any appeal would be wholly
frivolous. Under Anders, counsel must submit a brief to the client and the appellate court
indicating any potential appealable issues based on the record. The client may then
choose to submit arguments to the court. The Court must then conduct a full examination
of the record to determine whether defendant's claims are wholly frivolous. If the court
concludes after such an examination that the appeal is frivolous, it may grant counsel’s
motion to withdraw and may dismiss the appeal.

United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005) (citations omitted). In this
case, while Mr. Carrillo-Torres’s substantive reasonableness argument is frivolous, we do
not think his other two arguments, though ultimately meritless, are frivolous. It is not
clear to the Court why defense counsel did not make those latter arguments in her brief.
In any event, because we affirm and dismiss this appeal, we grant defense counsel’s
motion to withdraw.

                                              2
       Counsel for Mr. Carrillo-Torres argues in his Anders brief that the thirty-three-

month sentence imposed in this case—a sentence eight months below the low end of the

applicable advisory range prescribed by the Guidelines—was substantively unreasonable.

Counsel submits that this sentence was excessive in light of the sentencing objectives set

forth in 18 U.S.C. § 3553(a). Reviewing for an abuse of discretion, see Gall v. United

States, 552 U.S. 38, 46 (2007), we consider the totality of the circumstances, id. at 51,

and afford a rebuttable presumption of substantive reasonableness to this sentence, which

was below the advisory Guidelines range, United States v. Balbin-Mesa, 643 F.3d 783,

788 (10th Cir. 2011). On appeal, counsel for Mr. Carrillo-Torres offers no specific

reason why that presumption should be rebutted.3 Having reviewed the record in this

case, we find no reason to conclude that the district court’s sentencing determination was

“arbitrary, capricious, whimsical, or manifestly unreasonable,” United States v.

Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009) (quotation marks, citation omitted), and

therefore conclude that the district court committed no abuse of discretion.

    2. Whether a prior conviction was an aggravated felony

3
  To the extent that Mr. Carrillo-Torres seeks to identify error with the district court’s
refusal formally to depart downward based on cultural assimilation pursuant to
Application Note 8 to U.S.S.G. § 2L1.2—as opposed to varying below the advisory
sentencing range under the general considerations of 18 U.S.C. § 3553(a)—that effort is
fruitless on appeal. This Court lacks jurisdiction to review the district court’s
discretionary decision not to depart downward under § 2L1.2 when, as in this case, the
district court did not state (erroneously) that it lacked authority to depart downward, but
rather simply declined to do so in light of the circumstances of this case. See United
States v. Sierra-Castillo, 405 F.3d 932, 936 (10th Cir. 2005); United States v. Castillo,
140 F.3d 874, 887-88 (10th Cir. 1998).

                                             3
       In his pro se briefs, Mr. Carrillo-Torres argues that the district court procedurally

erred by considering his prior state conviction to be an “aggravated felony” under 8

U.S.C. § 1326(b)(2) and sentencing him thereunder.4 He observes that whereas “[a]

defendant convicted under section 1326(a) is generally subject to a maximum term of

imprisonment of two years,” “a defendant whose prior removal from the United States

was ‘subsequent to a conviction for commission of an aggravated felony’ may receive up

to a twenty-year sentence under section 1326(b)(2).” Aplt. Supp. Br. at 6; see also id. at

9.5 Mr. Carrillo-Torres unconditionally pled guilty to illegal re-entry after conviction for

an aggravated felony, and never otherwise objected below to counting his prior

conviction as an aggravated felony. As such, he failed to preserve his present argument,

so we review for plain error. See, e.g., United States v. Marquez, 258 Fed. App’x 184,

4
 An “aggravated felony” in this context includes (among other, presently inapplicable
offenses) “illicit trafficking in a controlled substance . . . , including a drug trafficking
crime (as defined in section 924(c) of Title 18).” 8 U.S.C. § 1101(a)(43)(B). In turn, 18
U.S.C. § 924(c)(2) defines “drug trafficking crime” as “any felony punishable under the
Controlled Substances Act (21 U.S.C. 801 et seq.) . . . .”
5
  Contrary to Mr. Carrillo-Torres’s suggestion, the district court did not apply an
“aggravated felony [sentence] enhancement” under the Guidelines. Aplt. Supp. Br. at 9
n.1 (emphasis added). Rather, the district court sentenced Mr. Carrillo-Torres under a
particular penalty provision of the statute, 8 U.S.C. § 1326(b)(2), which authorizes a
higher mandatory maximum under the statute. See Almendarez-Torres v. United States,
523 U.S. 224, 226 (1998); see also Apprendi v. New Jersey, 530 U.S. 466, 487-89 (2000).
Thus, to the extent that Mr. Carrillo-Torres asserts there was error in applying a sentence
enhancement under the Guidelines for prior commission of an aggravated felony, see,
e.g., Aplt. Br. at 8 (“[T]he 16-point ‘aggravated felony’ enhancement was improper.”),
that argument is meritless. The sixteen-point sentence enhancement in this case had to do
with prior commission of a “drug trafficking offense,” as discussed infra.

                                              4
188 n.2 (10th Cir. 2007) (unpublished).6 Accordingly, we ask whether there was “‘(1)

error, (2) that is plain, (3) which affects substantial rights, and (4) which seriously affects

the fairness, integrity, or public reputation of judicial proceedings.’” Id. at 188 (quoting

United States v. Cereceres-Zavala, 499 F.3d 1211, 1217 (10th Cir. 2007)).

         Mr. Carrillo-Torres’s PSR indicates that in 1993, he was convicted in California

state court of three counts of “Sale or Transportation of Cocaine,” one count of “Offering

to Sell More than 10 Pounds of Cocaine,” and two counts of “Transportation of Cocaine

from One County to Another Noncontiguous County,” and was sentenced to a total of

fifteen years and eight months’ imprisonment for these convictions. However, neither the

PSR nor any other part of the appellate record identifies the California statute(s) under

which Mr. Carrillo-Torres was convicted (although Mr. Carrillo-Torres references Cal.

Health & Safety Code § 11352(a)7 in his pro se appellate briefs). No documents from


6
  We acknowledge that in United States v. Gonzalez-Coronado, 419 F.3d 1090 (10th Cir.
2005), we reviewed de novo the district court’s sentencing under § 1326(b)(2) following
its determination the defendant had been convicted of an “aggravated felony.” See id. at
1092. Gonzales-Coronado is distinguishable in the standard of review context, however,
because in that case, the defendant simply “pled guilty to being in the United States
unlawfully after having been previously deported, violating 8 U.S.C. § 1326(a),” and then
the district court sentenced him under § 1326(b)(2) after determining that a prior
conviction was an aggravated felony. Id. at 1092. Additionally, the defendant-appellant
had objected, at sentencing, to the district court’s classification of his former felony
conviction as an “aggravated” one. Id. at 1094. In contrast, in the present case, Mr.
Carrillo-Torres pled guilty under § 1326(b)(2) specifically, admitting both in his written
guilty plea and at the plea hearing that he had been previously convicted of an aggravated
felony. Further, he never objected, in district court, to the classification of his prior
conviction as an aggravated felony.
7
    Cal. Health & Safety Code § 11352(a) provides, in relevant part, that “every person who
                                               5
those prior convictions, such as the judgment or the indictment, were attached to the PSR,

and none appear otherwise to have been presented below; they are not in the appellate

record. Also, neither the indictment, the guilty plea, nor the judgment in this case specify

by name any particular aggravated felony for which Mr. Carrillo-Torres was previously

convicted.

       Mr. Carrillo-Torres does not challenge the facts surrounding his prior convictions

as stated in the PSR; he simply argues that it cannot be concluded—from the PSR or from

the California statute he identifies as proscribing such conduct—that any of his admitted-

to convictions qualify as an “aggravated felony” under § 1326(b)(2). However, Mr.

Carrillo-Torres has never denied that at least one of those prior state convictions—

collectively for which he was sentenced to more than fifteen years’ imprisonment—is at

least a “felony” (a non-aggravated one), such that he would be subject to the ten-year

statutory maximum sentence of § 1326(b)(1), even if he were not subject to the twenty-

year maximum under § 1326(b)(2). We therefore need not reach the question of whether

it was plain error to count one of Mr. Carrillo-Torres’s prior convictions as an aggravated

felony, since it is not disputed that the prior conviction was at least a felony for purposes

of § 1326(b)(1). Since Mr. Carrillo-Torres was sentenced to thirty-three months’

imprisonment—under the ten-year maximum of § 1326(b)(1)—any error in classifying



transports, imports into this state, sells, furnishes, administers, or gives away, or offers to
transport, import into this state, sell, furnish, administer, or give away, or attempts to
import into this state or transport [certain controlled substances] shall be punished by
imprisonment . . . for three, four, or five years.”
                                               6
his prior conviction as an aggravated felony as opposed to a simple felony was harmless.

See Gonzales-Coronado, 419 F.3d at 1094. Consequently, assuming arguendo there was

plain error in classifying a prior conviction as an aggravated felony, any such error did

not affect Mr. Carrillo-Torres’s substantial rights, and so reversal is not warranted for this

reason.

    3. Whether a prior conviction was a felony drug trafficking offense

       Finally, also in his pro se brief, Mr. Carrillo-Torres argues that the district court

erred in applying a sixteen-point enhancement to his base offense level under the

Guidelines in light of a prior “conviction for a felony that is [among other, presently

inapplicable offenses] (i) a drug trafficking offense for which the sentence imposed

exceeded 13 months.”8 U.S.S.G. § 2L1.2(b)(1)(A). Mr. Carrillo-Torres argues that it

cannot properly be deduced, from his PSR or from the California statute under which he

claims he was convicted, that his convictions meet the applicable definition of a felony

drug trafficking offense for purposes of § 2L1.2(b)(1)(A). Once again, Mr. Carrillo-

Torres did not preserve this argument, having failed to object below to the application of

8
  A “felony,” for purposes of § 2L1.2(b)(1)(A), is defined in Application Note 2 as “any
federal, state, or local offense punishable by imprisonment for a term exceeding one
year.” Additionally, a “drug trafficking offense” is defined in Application Note 1(B)(iv)
to § 2L1.2 as

       an offense under federal, state, or local law that prohibits the manufacture,
       import, export, distribution, or dispensing of, or offer to sell a controlled
       substance (or a counterfeit substance) or the possession of a controlled
       substance (or a counterfeit substance) with intent to manufacture, import,
       export, distribute, or dispense.

                                              7
this enhancement. Thus, contrary to Mr. Carrillo-Torres’s reference to “the

government[’s] . . . burden to convincingly demonstrate that the sentencing court would

have imposed the very same sentence if it had not applied the [§ 2L1.2(b)(1)(A)]

enhancement,” Aplt. Supp. R. Br. at 7, we again review under a plain-error standard. See

United States v. Zubia-Torres, 550 F.3d 1202, 1204-07 (10th Cir. 2008).

       Once again, we may affirm without reaching the question of whether there was

plain error. Assuming arguendo there was, Mr. Carrillo-Torres has failed to show that his

substantial rights were affected. See id. at 1209. We have addressed similar situations in

the past. In Zubia-Torres, where it was possible that a defendant could be convicted

under a particular state statute for an offense that “would be beyond the scope of the

sixteen-level enhancement in § 2L1.2,” id., we explained:

       Had the defendant lodged a proper objection to the enhancement during the
       sentencing proceeding, the probation office and the government would have
       shouldered the burden of producing appropriate judicial documents to
       clarify the nature of [his] crime. “When the underlying statute reaches a
       broad range of conduct, some of which merits an enhancement and some of
       which does not, courts resolve the resulting ambiguity by consulting
       reliable judicial records, such as the charging document, plea agreement, or
       plea colloquy.” . . . Because defense counsel conceded the correctness of
       the Guidelines calculation in the PSR, however, neither the probation
       officer, the government, nor the district court had occasion to seek
       production of the necessary documents. Even on appeal, the defendant
       offers no evidence that his conviction was for [conduct under the statute
       that would not implicate § 2L1.2, as opposed to that which would]. We
       therefore have no way to know whether the enhancement properly applied.

       As a result, even if we regard the district court’s ruling on the enhancement
       issue as error, [defendant] has failed to show that his substantial rights were
       affected.

                                             8
Id. (citation, footnote omitted).

       We reached the same conclusion in United States v. Castellanos-Barba,

648 F.3d 1130 (10th Cir. 2011), in a materially identical situation where the

defendant was convicted under a California statute, Cal. Health & Safety Code §

11360(a)—a statute that closely resembles the one under which Mr. Carrillo-

Torres claims to have been previously convicted, see supra n.7. See Castellanos-

Barba, 848 F.3d at 1132-33 (“The propriety of this court’s holding in Zubia-

Torres, cannot be contested by another panel of this court. . . . Because

[defendant-appellant] has failed to proffer any records showing that his conviction

was for transportation for personal use rather than drug trafficking conduct, we

must conclude that his substantial rights were not affected.”).

       In this case, “appropriate documents” might “show[] that [Mr. Carrillo-

Torres’s] conviction was for a drug trafficking offense, [such that] the § 2L1.2

enhancement would properly apply, notwithstanding any legal error in the

sentencing judge’s approach.” Zubia-Torres, 550 F.3d at 1209. Therefore,

because Mr. Carrillo-Torres did not raise this issue below, and “fail[ed] to present

any evidence that relevant documents would indicate his conviction was not for

drug trafficking,” he has “failed to meet his burden under the third prong of plain

error review.” Id.




                                             9
   4. Conclusion

      For the foregoing reasons, we AFFIRM the sentence imposed in this case, and we

grant defense counsel’s motion to withdraw.



                                        ENTERED FOR THE COURT


                                        David M. Ebel
                                        Circuit Judge




                                          10
