FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 31, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 18-2029 (D.C. No. 2:18-CR-00047-WJ-1) v. (D. New Mexico)
HECTOR MANUEL CORDOVA-SOTO,
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before LUCERO, HARTZ, and McHUGH, Circuit Judges. _________________________________
Hector Manuel Cordova-Soto filed a counseled notice of appeal challenging the
imposition of a twenty-one-month term of imprisonment for violating the terms of his
supervised release. His counsel has since moved to withdraw from the case under Anders
v. California, 386 U.S. 738 (1967), asserting there are no non-frivolous grounds for
appeal. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and
* After examining counsel’s brief, Mr. Cordova-Soto’s response letter, and the 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. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. finding no grounds for appeal that are not “wholly frivolous,” we grant counsel’s motion
to withdraw, and we dismiss the appeal.
I. BACKGROUND
In 2014, Mr. Cordova-Soto pleaded guilty to one count of illegal reentry, in
violation of 8 U.S.C. § 1326(a), (b)(1). He was sentenced to thirty months in prison and
three years of supervised release. Upon his release from prison, he was deported to
Mexico.
In December 2017, Mr. Cordova-Soto, having returned to the United States,
pleaded guilty to yet another count of illegal reentry. That most recent reentry offense
was a violation of the terms of his supervised release, which provided that Mr. Cordova-
Soto “shall not commit another federal, state, or local crime during the term of
supervision.” 1 ROA at 10.
In February 2018, the district court conducted a joint hearing for (1) sentencing on
Mr. Cordova-Soto’s 2017 reentry offense in a case docketed as 2:17–cr–03517–WJ (“17–
cr–3517”), and (2) revocation of supervised release relating to Mr. Cordova-Soto’s 2014
reentry offense in a case docketed as 2:18–cr–00047–WJ (“18–cr–47”). As to case 17–
cr–3517, the district court accepted a plea agreement and sentenced Mr. Cordova-Soto to
twenty-four months’ imprisonment. As to case 18–cr–47, the district court found that
Mr. Cordova-Soto violated his term of supervised release when he illegally reentered the
country. The district court sentenced Mr. Cordova-Soto to twenty-one months’
imprisonment for the violation of supervised release, to run consecutively to the term
2 imposed in case 17–cr–3517. The district court declined to impose another term of
supervised release on Mr. Cordova-Soto’s supervised release violation.
Mr. Cordova-Soto’s counseled notice of appeal references only case number 18–
cr–47. Accordingly, only case 18–cr–47 is before us. The same counsel who filed
Mr. Cordova-Soto’s notice of appeal now moves to withdraw because there are no non-
frivolous grounds for appeal.
II. DISCUSSION
Under Anders, 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) (citing Anders,
386 U.S. at 744). In doing so, “counsel must submit a brief to the client and the appellate
court indicating any potential appealable issues based on the record.” Id. We must then
independently examine the record to determine whether the defendant’s claims are
“wholly frivolous,” and, if so, we may grant counsel’s motion to withdraw and dismiss
the appeal. Id.
Counsel’s Anders brief identifies one potential basis for appeal: that Mr. Cordova-
Soto’s sentence was substantively unreasonable. We review a challenge to a revocation
sentence for abuse of discretion, reviewing factual findings for clear error and legal
conclusions de novo. United States v. Tsosie, 376 F.3d 1210, 1217–18 (10th Cir. 2004),
abrogated on other grounds by Tapia v. United States, 564 U.S. 319 (2011). A district
court exceeds its discretion “when it renders a judgment that is arbitrary, capricious,
whimsical, or manifestly unreasonable.” United States v. Regan, 627 F.3d 1348, 1352
3 (10th Cir. 2010) (quotation marks omitted). A sentence must be “reasoned and
reasonable.” United States v. Contreras–Martinez, 409 F.3d 1236, 1241 (10th Cir. 2005)
(quotation marks omitted). “[A] ‘reasoned’ sentence is one that is ‘procedurally
reasonable’; and a ‘reasonable’ sentence is one that is ‘substantively reasonable.’” United
States v. McBride, 633 F.3d 1229, 1232 (10th Cir. 2011). “Procedural review asks
whether the sentencing court committed any error in calculating or explaining the
sentence.” United States v. Alapizco–Valenzuela, 546 F.3d 1208, 1214–15 (10th Cir.
2008). “[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. Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008)
(internal quotation marks omitted). We presume that a sentence following revocation of
supervised release that falls within the range suggested by the United States Sentencing
Commission’s policy statements is reasonable. McBride, 633 F.3d at 1233.
In this case, the advisory Guidelines range for Mr. Cordova-Soto on revocation is
twenty-one to twenty-seven months.1 See U.S.S.G. § 7B1.4(a) (establishing Guidelines
range of twenty-one to twenty-seven months for Grade B supervised release violation and
category VI criminal history). After considering the advisory range, as well as
Mr. Cordova-Soto’s characteristics and his “lengthy criminal history,” 2 ROA at 11, the
district court imposed a sentence at the low end of the advisory range—twenty-one
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 31, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 18-2029 (D.C. No. 2:18-CR-00047-WJ-1) v. (D. New Mexico)
HECTOR MANUEL CORDOVA-SOTO,
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before LUCERO, HARTZ, and McHUGH, Circuit Judges. _________________________________
Hector Manuel Cordova-Soto filed a counseled notice of appeal challenging the
imposition of a twenty-one-month term of imprisonment for violating the terms of his
supervised release. His counsel has since moved to withdraw from the case under Anders
v. California, 386 U.S. 738 (1967), asserting there are no non-frivolous grounds for
appeal. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and
* After examining counsel’s brief, Mr. Cordova-Soto’s response letter, and the 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. 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. finding no grounds for appeal that are not “wholly frivolous,” we grant counsel’s motion
to withdraw, and we dismiss the appeal.
I. BACKGROUND
In 2014, Mr. Cordova-Soto pleaded guilty to one count of illegal reentry, in
violation of 8 U.S.C. § 1326(a), (b)(1). He was sentenced to thirty months in prison and
three years of supervised release. Upon his release from prison, he was deported to
Mexico.
In December 2017, Mr. Cordova-Soto, having returned to the United States,
pleaded guilty to yet another count of illegal reentry. That most recent reentry offense
was a violation of the terms of his supervised release, which provided that Mr. Cordova-
Soto “shall not commit another federal, state, or local crime during the term of
supervision.” 1 ROA at 10.
In February 2018, the district court conducted a joint hearing for (1) sentencing on
Mr. Cordova-Soto’s 2017 reentry offense in a case docketed as 2:17–cr–03517–WJ (“17–
cr–3517”), and (2) revocation of supervised release relating to Mr. Cordova-Soto’s 2014
reentry offense in a case docketed as 2:18–cr–00047–WJ (“18–cr–47”). As to case 17–
cr–3517, the district court accepted a plea agreement and sentenced Mr. Cordova-Soto to
twenty-four months’ imprisonment. As to case 18–cr–47, the district court found that
Mr. Cordova-Soto violated his term of supervised release when he illegally reentered the
country. The district court sentenced Mr. Cordova-Soto to twenty-one months’
imprisonment for the violation of supervised release, to run consecutively to the term
2 imposed in case 17–cr–3517. The district court declined to impose another term of
supervised release on Mr. Cordova-Soto’s supervised release violation.
Mr. Cordova-Soto’s counseled notice of appeal references only case number 18–
cr–47. Accordingly, only case 18–cr–47 is before us. The same counsel who filed
Mr. Cordova-Soto’s notice of appeal now moves to withdraw because there are no non-
frivolous grounds for appeal.
II. DISCUSSION
Under Anders, 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) (citing Anders,
386 U.S. at 744). In doing so, “counsel must submit a brief to the client and the appellate
court indicating any potential appealable issues based on the record.” Id. We must then
independently examine the record to determine whether the defendant’s claims are
“wholly frivolous,” and, if so, we may grant counsel’s motion to withdraw and dismiss
the appeal. Id.
Counsel’s Anders brief identifies one potential basis for appeal: that Mr. Cordova-
Soto’s sentence was substantively unreasonable. We review a challenge to a revocation
sentence for abuse of discretion, reviewing factual findings for clear error and legal
conclusions de novo. United States v. Tsosie, 376 F.3d 1210, 1217–18 (10th Cir. 2004),
abrogated on other grounds by Tapia v. United States, 564 U.S. 319 (2011). A district
court exceeds its discretion “when it renders a judgment that is arbitrary, capricious,
whimsical, or manifestly unreasonable.” United States v. Regan, 627 F.3d 1348, 1352
3 (10th Cir. 2010) (quotation marks omitted). A sentence must be “reasoned and
reasonable.” United States v. Contreras–Martinez, 409 F.3d 1236, 1241 (10th Cir. 2005)
(quotation marks omitted). “[A] ‘reasoned’ sentence is one that is ‘procedurally
reasonable’; and a ‘reasonable’ sentence is one that is ‘substantively reasonable.’” United
States v. McBride, 633 F.3d 1229, 1232 (10th Cir. 2011). “Procedural review asks
whether the sentencing court committed any error in calculating or explaining the
sentence.” United States v. Alapizco–Valenzuela, 546 F.3d 1208, 1214–15 (10th Cir.
2008). “[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. Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008)
(internal quotation marks omitted). We presume that a sentence following revocation of
supervised release that falls within the range suggested by the United States Sentencing
Commission’s policy statements is reasonable. McBride, 633 F.3d at 1233.
In this case, the advisory Guidelines range for Mr. Cordova-Soto on revocation is
twenty-one to twenty-seven months.1 See U.S.S.G. § 7B1.4(a) (establishing Guidelines
range of twenty-one to twenty-seven months for Grade B supervised release violation and
category VI criminal history). After considering the advisory range, as well as
Mr. Cordova-Soto’s characteristics and his “lengthy criminal history,” 2 ROA at 11, the
district court imposed a sentence at the low end of the advisory range—twenty-one
1 During Mr. Cordova-Soto’s sentencing hearing, the district court mistakenly identified the Guidelines range as twenty-one to twenty-four months. This misstatement, however, favored Mr. Cordova-Soto and proved harmless where the district court imposed a twenty-one month sentence, a sentence at the bottom of both the correct range and the misstated range. 4 months, to run consecutively to the time imposed in case 17–cr–3517. Thus, the district
court properly considered both the advisory range from the Sentencing Commission’s
policy statements and the § 3553(a) factors before imposing a within-guidelines sentence.
Counsel’s Anders brief discusses Mr. Cordova-Soto’s request to challenge the
district court’s decision to impose a consecutive sentence. “Under 18 U.S.C. § 3584(a), a
district court has the discretion to impose consecutive or concurrent sentences.” United
States v. Rodriguez–Quintanilla, 442 F.3d 1254, 1256 (10th Cir. 2006) (citation omitted).
Section 3584(b) provides that “[t]he court, in determining whether the terms imposed are
to be ordered to run concurrently or consecutively, shall consider . . . the factors set forth
in section 3553(a).” And the Sentencing Commission’s policy statement states that “[a]ny
term of imprisonment imposed upon the revocation of probation or supervised release
shall be ordered to be served consecutively to any sentence of imprisonment that the
defendant is serving[.]” U.S.S.G. § 7B1.3(f).
In the Anders brief, counsel concedes the district court clearly considered the
factors of 18 U.S.C. § 3553(a) and the advisory statements of the Sentencing
Commission. And the district court sentenced Mr. Cordova-Soto consistent with their
guidance. Therefore, counsel concedes it was within the sentencing court’s discretion to
order that Mr. Cordova-Soto’s sentence of the supervised release violation run
consecutively to the sentence on the 2017 reentry conviction. We agree. The record
provides no basis to conclude that the sentence is procedurally or substantively
unreasonable. Nor can we discern any other potentially meritorious issues in our
independent review of the record.
5 One final point deserves mention. In a hand written pro se letter to this court filed
after receipt of his counsel’s Anders brief, Mr. Cordova requests that we continue with
his appeal and provide him with the assistance of another appointed attorney to help him
with his case. His letter also informs us that he is dissatisfied with his attorney’s
performance:
During the day to sign the guilty or not guilty-plea my assigned attorney did not show[] up and I was hurried to signed [sic] guilty plea on all the charges by another attorney assigned to cover for her. In [the] days before my sentence my regular appointed attorney indicated that I had 3 years[’] probation from a prior sentence and would be run concurrent with whatever sentence I receive. The Honorable Judge gave me 2 sentences, 24 months for re-entry and 21 months for probation violation[,] a total of 45 months. I feel that my sentence was more than I expected and what my attorney advised me [it] would be.
Response filed by Hector Manuel Cordova-Soto, Docket No. 10566798. We are troubled
by Mr. Cordova-Soto’s account. This appeal, however, is not the proper forum to
consider his allegations, which we construe as a possible claim for ineffective assistance
of counsel in case number 17–cr–3517. In the event Mr. Cordova-Soto has filed (or will
file) a timely motion under 28 U.S.C. § 2255 in case number 17–cr–3517, we trust the
district court will consider in the first instance the merits of any ineffective-assistance
claim that Mr. Cordova-Soto raises. See United States v. Erickson, 561 F.3d 1150, 1170
(10th Cir. 2009) (stating that § 2255 motions are the preferred vehicle for considering
ineffective-assistance-of-counsel claims). But the alleged ineffective assistance of
counsel is not grounds to continue with this direct appeal.
6 III. CONCLUSION
We GRANT counsel’s request to withdraw and we DISMISS the appeal.
Entered for the Court
Carolyn B. McHugh Circuit Judge