Appellate Case: 23-5055 Document: 010111006083 Date Filed: 02/27/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 27, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-5055 (D.C. No. 4:21-CR-00545-GKF-1) RODRIGO JAVIER DIAZ-DE LA CRUZ, (N.D. Okla.) a/k/a Jose T. Gonzalez,
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT * _________________________________
Before BACHARACH, BALDOCK, and MORITZ, Circuit Judges. _________________________________
Rodrigo Javier Diaz-De la Cruz pleaded guilty to illegally reentering the
United States after having been previously removed. See 18 U.S.C. § 1326. His
Pre-Sentence Investigation Report assessed an offense level of 15 and a criminal
history category of II, yielding a guideline sentencing range of 21-27 months in
prison. De la Cruz moved for both a downward departure and a downward variance.
The district court denied a departure, granted a two-level downward variance, and
* After examining the brief 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. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 23-5055 Document: 010111006083 Date Filed: 02/27/2024 Page: 2
sentenced De la Cruz to 18 months in prison. De la Cruz appealed, indicating he
intended to challenge the procedural and/or substantive reasonableness of his
sentence. His counsel, however, filed a brief under Anders v. California, 386 U.S.
738 (1967), contending there are no nonfrivolous issues to appeal and seeking
permission to withdraw. Exercising jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742, we grant counsel’s motion to withdraw and dismiss the appeal.
I
Anders permits “counsel to 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).
[C]ounsel 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 [c]ourt 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.
Id. (citations omitted). De la Cruz’s counsel filed an Anders brief and served it on
both the government and De la Cruz. We notified De la Cruz of his opportunity to
file a pro se response, but neither he nor the government responded. Based on our
review, we agree with counsel that there are no nonfrivolous issues to appeal.
II
Counsel identifies two potential issues relating to the procedural and
substantive reasonableness of De la Cruz’s sentence. “[W]e review all sentences—
whether inside, just outside, or significantly outside the Guidelines range—under a
2 Appellate Case: 23-5055 Document: 010111006083 Date Filed: 02/27/2024 Page: 3
deferential abuse-of-discretion standard.” United States v. Gross, 44 F.4th 1298,
1301 (10th Cir. 2022) (internal quotation marks omitted). “Our appellate review for
reasonableness includes both a procedural component, encompassing the method by
which a sentence was calculated, as well as a substantive component, which relates to
the length of the resulting sentence.” United States v. Smart, 518 F.3d 800, 803
(10th Cir. 2008). “While a case involving a departure (and thus the question of
guidelines application) opens the door to a procedural reasonableness challenge, we
review a variance for substantive reasonableness.” United States v. Kaspereit,
994 F.3d 1202, 1214 (10th Cir. 2021).
Counsel first correctly points out that any procedural challenge to the
discretionary denial of a downward departure would fall outside the scope of our
jurisdiction. See United States v. Sierra-Castillo, 405 F.3d 932, 936 (10th Cir. 2005)
(“This court has no jurisdiction . . . to review a district court’s discretionary decision
to deny a motion for downward departure on the ground that a defendant’s
circumstances do not warrant the departure.”).
“The only [jurisdictional] exception is if the denial [of a departure] is based on
the district court’s interpretation of the Guidelines as depriving it of the legal
authority to grant the departure.” United States v. Dawson, 90 F.4th 1286, 1292-93
(10th Cir. 2024) (internal quotation marks omitted). That exception does not apply
here. De la Cruz sought a departure under United States Sentencing Guidelines
Manual § 2L1.2, cmt., appl. n.7 (U.S. Sentencing Comm’n), which permits a
departure based on time served in state custody. “Such a departure should be
3 Appellate Case: 23-5055 Document: 010111006083 Date Filed: 02/27/2024 Page: 4
considered only in cases where the departure is not likely to increase the risk to the
public from further crimes of the defendant.” Id. Among other things, “the court
should consider . . . whether the defendant engaged in additional criminal activity
after illegally reentering the United States [and] the seriousness of any such
additional criminal activity.” Id. The district court considered these factors and
determined that a departure was inappropriate because it was likely to increase the
risk to the public from further crimes of De la Cruz. Further, the district court
pointed out that, after illegally reentering the United States, De la Cruz committed a
serious state offense—trafficking in heroin. Under these circumstances, the district
court did not misunderstand its authority to grant or deny a departure.
Second, counsel correctly contends there are no nonfrivolous issues regarding
the district court’s substantive decision to grant a downward variance. De la Cruz
conceded that the applicable guidelines range was 21-27 months in prison, but he
requested a downward variance to time served because he had been in federal custody
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Appellate Case: 23-5055 Document: 010111006083 Date Filed: 02/27/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 27, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-5055 (D.C. No. 4:21-CR-00545-GKF-1) RODRIGO JAVIER DIAZ-DE LA CRUZ, (N.D. Okla.) a/k/a Jose T. Gonzalez,
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT * _________________________________
Before BACHARACH, BALDOCK, and MORITZ, Circuit Judges. _________________________________
Rodrigo Javier Diaz-De la Cruz pleaded guilty to illegally reentering the
United States after having been previously removed. See 18 U.S.C. § 1326. His
Pre-Sentence Investigation Report assessed an offense level of 15 and a criminal
history category of II, yielding a guideline sentencing range of 21-27 months in
prison. De la Cruz moved for both a downward departure and a downward variance.
The district court denied a departure, granted a two-level downward variance, and
* After examining the brief 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. 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. Appellate Case: 23-5055 Document: 010111006083 Date Filed: 02/27/2024 Page: 2
sentenced De la Cruz to 18 months in prison. De la Cruz appealed, indicating he
intended to challenge the procedural and/or substantive reasonableness of his
sentence. His counsel, however, filed a brief under Anders v. California, 386 U.S.
738 (1967), contending there are no nonfrivolous issues to appeal and seeking
permission to withdraw. Exercising jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742, we grant counsel’s motion to withdraw and dismiss the appeal.
I
Anders permits “counsel to 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).
[C]ounsel 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 [c]ourt 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.
Id. (citations omitted). De la Cruz’s counsel filed an Anders brief and served it on
both the government and De la Cruz. We notified De la Cruz of his opportunity to
file a pro se response, but neither he nor the government responded. Based on our
review, we agree with counsel that there are no nonfrivolous issues to appeal.
II
Counsel identifies two potential issues relating to the procedural and
substantive reasonableness of De la Cruz’s sentence. “[W]e review all sentences—
whether inside, just outside, or significantly outside the Guidelines range—under a
2 Appellate Case: 23-5055 Document: 010111006083 Date Filed: 02/27/2024 Page: 3
deferential abuse-of-discretion standard.” United States v. Gross, 44 F.4th 1298,
1301 (10th Cir. 2022) (internal quotation marks omitted). “Our appellate review for
reasonableness includes both a procedural component, encompassing the method by
which a sentence was calculated, as well as a substantive component, which relates to
the length of the resulting sentence.” United States v. Smart, 518 F.3d 800, 803
(10th Cir. 2008). “While a case involving a departure (and thus the question of
guidelines application) opens the door to a procedural reasonableness challenge, we
review a variance for substantive reasonableness.” United States v. Kaspereit,
994 F.3d 1202, 1214 (10th Cir. 2021).
Counsel first correctly points out that any procedural challenge to the
discretionary denial of a downward departure would fall outside the scope of our
jurisdiction. See United States v. Sierra-Castillo, 405 F.3d 932, 936 (10th Cir. 2005)
(“This court has no jurisdiction . . . to review a district court’s discretionary decision
to deny a motion for downward departure on the ground that a defendant’s
circumstances do not warrant the departure.”).
“The only [jurisdictional] exception is if the denial [of a departure] is based on
the district court’s interpretation of the Guidelines as depriving it of the legal
authority to grant the departure.” United States v. Dawson, 90 F.4th 1286, 1292-93
(10th Cir. 2024) (internal quotation marks omitted). That exception does not apply
here. De la Cruz sought a departure under United States Sentencing Guidelines
Manual § 2L1.2, cmt., appl. n.7 (U.S. Sentencing Comm’n), which permits a
departure based on time served in state custody. “Such a departure should be
3 Appellate Case: 23-5055 Document: 010111006083 Date Filed: 02/27/2024 Page: 4
considered only in cases where the departure is not likely to increase the risk to the
public from further crimes of the defendant.” Id. Among other things, “the court
should consider . . . whether the defendant engaged in additional criminal activity
after illegally reentering the United States [and] the seriousness of any such
additional criminal activity.” Id. The district court considered these factors and
determined that a departure was inappropriate because it was likely to increase the
risk to the public from further crimes of De la Cruz. Further, the district court
pointed out that, after illegally reentering the United States, De la Cruz committed a
serious state offense—trafficking in heroin. Under these circumstances, the district
court did not misunderstand its authority to grant or deny a departure.
Second, counsel correctly contends there are no nonfrivolous issues regarding
the district court’s substantive decision to grant a downward variance. De la Cruz
conceded that the applicable guidelines range was 21-27 months in prison, but he
requested a downward variance to time served because he had been in federal custody
for over five months and in state custody for 26 months. He claimed a variance
would avoid any sentencing disparity caused by his federal prosecution being delayed
until after his state sentence was imposed, which he asserted deprived him of the
opportunity to seek concurrent state and federal sentences. He also urged the district
court to grant a variance on the grounds that he reentered the United States for
economic reasons and the guidelines overrepresented his criminal history.
The district court agreed De la Cruz’s circumstances warranted a slight
downward variance, particularly because the guidelines overrepresented his criminal
4 Appellate Case: 23-5055 Document: 010111006083 Date Filed: 02/27/2024 Page: 5
history. The district court considered the sentencing factors set forth at 18 U.S.C.
§ 3553(a) and reduced the applicable offense level by two, which yielded a guideline
range of 15-21 months. The district court then sentenced De la Cruz to 18 months in
prison. This is not an unreasonable sentence. See United States v. Sayad, 589 F.3d
1110, 1116 (10th Cir. 2009) (“[A] . . . sentence is substantively unreasonable only if
it is arbitrary, capricious, whimsical, or manifestly unreasonable.”). The district
court carefully weighed the § 3553(a) factors, including the nature of De la Cruz’s
unlawful-reentry offense, his criminal history, and his personal characteristics. The
district court also explained that it sought to impose a sentence to provide adequate
deterrence, promote respect for the law, provide a just punishment, and protect the
public, mindful of sentencing disparities. Affording due deference to the district
court’s decision that the § 3553(a) factors warranted the variance, any challenge to
the substantive reasonableness of De la Cruz’s sentence would have been frivolous.
III
Based on our review of the record, we find no other arguably meritorious
claims. Accordingly, we grant counsel’s motion to withdraw and dismiss this appeal.
Entered for the Court
Nancy L. Moritz Circuit Judge