                                                                     FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                               February 6, 2015
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                  Clerk of Court
                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff – Appellee,

 v.                                                    No. 14-2162
                                                    (D. New Mexico)
 RAYMUNDO CASTRO-GAXIOLA,                    (D.C. No. 2:14-CR-01327-RB-1)

             Defendant – Appellant.


                          ORDER AND JUDGMENT *


Before PORFILIO, ANDERSON, and MURPHY, Circuit Judges.




      After examining the briefs and 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.

      Defendant and Appellant, Raymundo Castro-Gaxiola, seeks to appeal his

conviction and sentence following his plea of guilty to one count of conspiracy to


      *
       This order and judgment is not binding precedent, except under the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 under the terms and conditions of 10th Cir. R. 32.1.
possess with intent to distribute fifty kilograms or more of marijuana, in violation

of 21 U.S.C. § 846 and § 841(b)(1)(C). His appointed counsel, Assistant Federal

Public Defender Nia Rucker, has filed an Anders brief and has moved to withdraw

as counsel. See Anders v. California, 386 U.S. 738 (1967). Mr. Castro-Gaxiola

has declined to file a pro se response to that brief, and the government has also

declined to file a brief. We therefore base our conclusion on counsel’s brief and

our own careful review of the record. For the reasons set forth below, we agree

with Ms. Rucker that the record in this case provides no nonfrivolous basis for an

appeal, and we therefore grant her motion to withdraw and we dismiss this appeal.

      Following Mr. Castro-Gaxiola’s guilty plea, and in preparation for his

sentencing under the United States Sentencing Commission, Guidelines Manual

(“U.S.S.G.”), the United States Probation Office prepared a presentence report

(“PSR”). The PSR calculated Mr. Castro-Gaxiola’s advisory sentencing range as

twenty-seven to thirty-three months, based on an offense level of 17 and a

criminal history category of II. Mr. Castro-Gaxiola had two prior convictions for

illegal reentry into the United States.

      At his sentencing hearing, Mr. Castro-Gaxiola did not object to the

Guidelines’ calculations. The government agreed that he should receive a two-

level reduction based on the imminent amendments to U.S.S.G. § 2D1.1, which




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went into effect on November 1, 2014. 1 The government also agreed that he was

entitled to a one-category reduction in his criminal history category. Mr. Castro-

Gaxiola requested a variance from the advisory sentencing range based on his

family circumstances (his wife was due to give birth in one month).

      The district court granted the two-level reduction in offense level and the

one-category reduction in his criminal history category, which resulted in an

advisory Guidelines sentencing range of eighteen to twenty-four months. The

court rejected Mr. Castro-Gaxiola’s request for a variance, however, and

sentenced him to eighteen months, at the low end of the advisory range. Mr.

Castro-Gaxiola’s counsel filed a notice of appeal. As indicated, that counsel has

now moved to withdraw as counsel pursuant to Anders.

      The Supreme Court’s decision in Anders authorizes a defendant’s lawyer to

seek permission to withdraw from an appeal if, “after conscientious examination,”

the lawyer finds the appeal “wholly frivolous.” Anders, 386 U.S. at 744.

Invoking Anders requires the lawyer to “submit a brief to the client and the

appellate court indicating any potential appealable issues based on the record,”

and the client has an opportunity to respond to his attorney’s arguments. United

States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005) (citing Anders, 386 U.S. at

744); see also United States v. Banuelos-Barraza, 639 F.3d 1262, 1263 (10th Cir.


      1
       The amendments lowered the offense level for most drug quantity
offenses, including Mr. Castro-Gaxiola’s, under U.S.S.G. § 2D1.1.

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2011). In evaluating the attorney’s request to withdraw, we are required to

“conduct a full examination of the record to determine whether defendant’s

claims are wholly frivolous.” Id. If they are, we may grant counsel’s motion to

withdraw and dismiss the appeal. Id.

      Applying that standard, we consider counsel’s brief and we have conducted

our own review of the record. Counsel states that there “are no meritorious issues

raised in this appeal. The only potential issue is whether Mr. Castro-Gaxiola’s

18-month sentence was substantively unreasonable.” Defendant–Appellant’s Br.

at 7. We agree that the only potential issue for review is the substantive

reasonableness of Mr. Castro-Gaxiola’s sentence.

      “[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. Damato, 672 F.3d 832, 838 (10th

Cir. 2012) (internal quotation marks omitted). We review substantive

reasonableness claims for abuse of discretion, id., “afford[ing] substantial

deference to [the] district court[].” United States v. Smart, 518 F.3d 800, 806

(10th Cir. 2008). A sentence within the properly-calculated Guidelines range is

presumed on appeal to be reasonable. United States v. Alvarez-Bernabe, 626 F.3d

1161, 1167 (10th Cir. 2010).

      At sentencing, as indicated above, the district court granted Mr. Castro-

Gaxiola his requested reduction in offense level and it reduced his criminal

                                          -4-
history category. The court concluded that no further reduction was appropriate,

even with the circumstance of Mr. Castro-Gaxiola’s pregnant wife. We perceive

no abuse of discretion in that determination. It is Mr. Castro-Gaxiola’s burden to

rebut the presumptive reasonableness of his within-Guidelines sentence; we can

conceive of no nonfrivolous argument with which to challenge that sentence.

      In short, we discern no meritorious grounds for an appeal. We therefore

GRANT counsel’s request to withdraw, and we DISMISS this appeal.

                                              ENTERED FOR THE COURT


                                              Stephen H. Anderson
                                              Circuit Judge




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