                                                                                 FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit

                                                                          November 5, 2012
                      UNITED STATES COURT OF APPEALS
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

        Plaintiff–Appellee,

 v.                                                          No. 12-2050
                                                   (D.C. No. 2:11-CR-01825-WJ-1)
 JUAN MANUEL GAMEZ-TAPIA,                                     (D.N.M.)

        Defendant–Appellant.


                              ORDER AND JUDGMENT*


Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges.


       Juan Manuel Gamez-Tapia appeals his sentence of eight months’ imprisonment

imposed following revocation of his supervised release. Gamez-Tapia’s counsel moves

for leave to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). Exercising

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we dismiss the appeal and

grant counsel’s motion to withdraw.

        * After examining appellant’s brief and the 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) and 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
                                               I

       On April 14, 2011, Gamez-Tapia was arrested for illegally reentering the United

States. Consequently, the government filed a petition to revoke Gamez-Tapia’s

supervised release in a prior drug trafficking case. Following a plea colloquy, the district

court accepted Gamez-Tapia’s guilty plea to violation of the terms of his supervised

release. After calculating an advisory Guidelines range of eight to fourteen months’

imprisonment, the court imposed a sentence of eight months. Gamez-Tapia filed a timely

notice of appeal.

                                              II

       Counsel may seek leave to withdraw if, after conscientiously examining a case, he

determines that an appeal would be wholly frivolous. Anders, 386 U.S. at 744. To

withdraw properly, counsel must submit a brief highlighting any potentially appealable

issues and submit the brief to the defendant. Id. If upon careful examination of the

record the court determines that the appeal is frivolous, it may grant the request to

withdraw and dismiss the appeal. Id. In this case, counsel sent a copy of the Anders

brief to Gamez-Tapia, but Gamez-Tapia has not filed a pro se brief.

       Counsel’s Anders brief first raises and dismisses the argument that Gamez-Tapia

was deprived of his rights under Federal Rule of Criminal Procedure 32.1(b)(2).

Because Gamez-Tapia’s prior counsel did not make this objection below, we review for

plain error. See United States v. Rausch, 638 F.3d 1296, 1299 (10th Cir. 2011). “Plain

error occurs when there is (1) error, (2) that is plain, which (3) affects [the defendant’s]

substantial rights, and which (4) seriously affects the fairness, integrity, or public

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reputation of judicial proceedings.” Id. at 1299-1300. Rule 32.1(b)(2) entitles a

defendant in a revocation hearing to: (a) written notice of the alleged violation; (b)

disclosure of the evidence against him; (c) an opportunity to appear, present evidence,

and question any adverse witness unless the court determines that the interest of justice

does not so require; (d) notice of his right to retain counsel or to request that counsel be

appointed if he cannot obtain counsel; and (e) an opportunity to make a statement and

present any information in mitigation. Fed. R. Crim. P. 32.1(b)(2).

       The record forecloses any non-frivolous argument that Gamez-Tapia was deprived

of his rights under Rule 32.1(b)(2). Gamez-Tapia had notice of the petition to revoke his

supervised release, which described the evidence against him. The district court afforded

Gamez-Tapia the opportunity to appear, present evidence, and cross-examine witnesses.

A full hearing was not required because Gamez-Tapia knowingly and voluntarily waived

his right to a full hearing. Gamez-Tapia was represented by counsel, and exercised his

right to address the court and have his counsel present mitigating information.

       Counsel’s brief next raises and dismisses the argument that Gamez-Tapia’s

advisory Guidelines range was improperly calculated. When reviewing the district

court’s application of the Guidelines, “we review legal questions de novo and factual

findings for clear error, giving due deference to the district court’s application of the

guidelines to the facts.” United States v. Munoz-Tello, 531 F.3d 1174, 1181 (10th Cir.

2008) (quotation omitted). However, when a defendant fails to timely object, we review

for plain error. See United States v. Poe, 556 F.3d 1113, 1127-28 (10th Cir. 2009).



                                            –3–
       The record does not permit a non-frivolous argument of plain error. The district

court correctly determined that Gamez-Tapia’s supervised release violation for illegal

reentry has the most serious grade under U.S.S.G. § 7B1.1(b), and correctly determined

that this was a Grade B violation. See § 7B1.1(a)(2). And because Gamez-Tapia had a

criminal history category of III, his Guidelines range was properly calculated at eight to

fourteen months under § 7B1.4.

       Counsel’s brief next raises and dismisses the argument that Gamez-Tapia’s

sentence is substantively unreasonable. We review for abuse of discretion. Gall v.

United States, 552 U.S. 38, 51 (2007). This review assesses 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. Reyes-Alfonso, 653 F.3d 1137, 1145

(10th Cir. 2011). Because the district court imposed a sentence properly within the

Guidelines range, we presume it is substantively reasonable. See id.

       Counsel properly concluded that it would be frivolous to argue that a low-end

sentence of eight months is unreasonable in light of the other § 3553(a) factors. The

district court noted Gamez-Tapia’s criminal history and that he had been granted

voluntary departure to Mexico on multiple occasions. The district court thus reasonably

held that a sentence within the Guidelines range was necessary to deter Gamez-Tapia

from further illegal reentries.

       Finally, counsel’s brief raises and dismisses the argument that Gamez-Tapia’s

sentence is procedurally unreasonable because the district court failed to adequately

explain its reasons for the sentence under 18 U.S.C. § 3553(c). Because Gamez-Tapia

                                            –4–
did not raise this argument below, we review for plain error. See United States v. Ruiz-

Terrazas, 477 F.3d 1196, 1199 (10th Cir. 2007). Some cases, including those where a

judge imposes a sentence within the applicable Guidelines range, require little

explanation. See Rita v. United States, 551 U.S. 338, 356 (2007) (holding that the court

adequately explained its reasons under § 3553(c) with respect to the factors set forth in

§ 3553(a) where the court gave “brief” reasons in response to “straightforward”

arguments). The district court explained that the sentence was within the Guideline

range, and was sufficient but not greater than necessary to satisfy the goals of sentencing.

Even assuming the stated reasons were insufficient under § 3553(c), Gamez-Tapia cannot

establish that the district court’s failure to elaborate on its reasoning impacted the

outcome of his sentencing and therefore affected his substantial rights, as required to

show plain error. See Ruiz-Terrazas, 477 F.3d at 1203.

                                              III

       Because we are not presented with any meritorious grounds for appeal, we

GRANT counsel’s request to withdraw and DISMISS the appeal.

                                           Entered for the Court



                                           Carlos F. Lucero
                                           Circuit Judge




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