FILED United States Court of Appeals Tenth Circuit
December 6, 2007 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 07-2144 v. (D.C. No. CR-07-215-MV) (D. N.M.) EFRAIN TREJO-ALVAREZ,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.
Efrain Trejo-Alvarez pled guilty to re-entering the United States illegally
after a previous deportation. See 8 U.S.C. § 1326. The district court sentenced
him to 21 months imprisonment, at the low end of the advisory Sentencing
Guidelines range. On appeal, Mr. Trejo-Alvarez’s counsel filed an Anders brief
and moved to withdraw as counsel. See Anders v. California, 386 U.S. 738
(1967). We received no response from Mr. Trejo-Alvarez, and the government
* After examining counsel’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 This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel.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. also declined to respond. For the reasons set forth below, we discern no
meritorious issues for appeal, and we therefore grant the motion to withdraw and
dismiss the appeal.
***
A native of Mexico, Mr. Trejo-Alvarez was found in Doña Ana County,
New Mexico in October 2006, after having been deported from the United States
on four prior occasions. He was charged with one count of illegal re-entry
following deportation, in violation of 8 U.S.C. § 1326. Because his prior
deportation was subsequent to a felony conviction, Mr. Trejo-Alvarez faced a
possible prison sentence of up to ten years. See id. § 1326(b)(1). Mr. Trejo-
Alvarez pled guilty to a one-count information charging him with reentry of a
removed alien.
Pursuant to the advisory United States Sentencing Guidelines, Mr. Trejo-
Alvarez’s conviction carried a base offense level of 8. See U.S.S.G. § 2L1.2(a).
But because he had been deported following a felony conviction, the Guidelines
recommended a 4-level enhancement. See id. § 2L1.2(b)(1)(D). Subtracting 2
levels for acceptance of responsibility, Mr. Trejo-Alvarez’s final suggested
offense level was 10. Because of his prior criminal convictions, Mr. Trejo-
Alvarez was classified at criminal history category level V. That offense level
and criminal history category resulted in a proposed Guidelines sentencing range
of 21-27 months imprisonment.
-2- Mr. Trejo-Alvarez did not challenge the facts set forth in the presentence
report, which included the Guidelines range calculation and information about his
background, criminal history, and other potentially relevant factors. He did,
however, file a sentencing memorandum pointing out that all of the points
assessed in determining his criminal history category were for immigration
violations. Mr. Trejo-Alvarez suggested that, in these circumstances, his
criminal history was overstated. He argued that a lesser criminal history
category, leading to a suggested Guidelines range sentence of 15-21 months
imprisonment, was more appropriate. Even so, Mr. Trejo-Alvarez argued that the
district court should depart or vary downward and sentence him to 12 months and
1 day in prison. This was a more reasonable sentence, he argued, in light of the
immigration-related nature of his recent convictions and having ailing elderly
parents at home in Mexico.
The district court disagreed. While Mr. Trejo-Alvarez’s criminal history
points were assessed for immigration offenses, Mr. Trejo-Alvarez also had 13
past convictions that were not considered under the Guidelines. The court said
that there were “too many prior convictions, and the nature of the offenses are
simply too serious for the Court to simply disregard, and say that under Booker, a
12-month and one day sentence is appropriate.” May 24, 2007, Sentencing Hr’g
Tr. at 9-10. The court distinguished Mr. Trejo-Alvarez’s situation from those
who came to this country only to work and whose only prior criminal acts are
-3- illegal entry or re-entry. Mr. Trejo-Alvarez had repeatedly been “involved in
fights, and drinking, and stealing . . . [a]nd resisting officers” since he arrived in
the United States. Id. at 10. The district court acknowledged the factors in 18
U.S.C. § 3553(a) and the facts set forth in the presentencing report, and sentenced
Mr. Trejo-Alvarez to 21 months in prison, followed by two years of unsupervised
release, the low end of the suggested Guidelines range. 1
Pursuant to the Supreme Court’s decision in Anders v. California, a court-
appointed defense counsel may “request permission to withdraw [from an appeal]
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). This process requires counsel to
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. (citing Anders, 386 U.S. at 744).
1 Because Mr. Trejo-Alvarez was convicted while on supervised release from a prior immigration conviction in the District of Arizona, a petition to revoke supervision was filed in the District of Arizona and jurisdiction was transferred to the District of New Mexico. The district court sentenced Mr. Trejo- Alvarez to 12 months for the violation of the terms of his release, but allowed the sentence to run concurrently with the 21-month sentence it had just imposed.
-4- In his Anders brief, counsel noted that this appeal would conceivably be
meritorious only if (1) the guilty plea were not voluntary or (2) the sentence were
unreasonable. After conducting a full examination of the record, we agree with
counsel’s conclusion that no basis in law or fact exists for either of these
arguments.
A valid guilty plea must be knowingly, intelligently, and voluntarily made.
See United States v. Gigot, 147 F.3d 1193, 1197 (10th Cir. 1998); see also Fed. R.
Crim. P. 11. The record indicates that the district court fulfilled the requirements
set out in Rule 11 and those announced in Gigot to ensure the validity of the plea.
Free access — add to your briefcase to read the full text and ask questions with AI
FILED United States Court of Appeals Tenth Circuit
December 6, 2007 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 07-2144 v. (D.C. No. CR-07-215-MV) (D. N.M.) EFRAIN TREJO-ALVAREZ,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.
Efrain Trejo-Alvarez pled guilty to re-entering the United States illegally
after a previous deportation. See 8 U.S.C. § 1326. The district court sentenced
him to 21 months imprisonment, at the low end of the advisory Sentencing
Guidelines range. On appeal, Mr. Trejo-Alvarez’s counsel filed an Anders brief
and moved to withdraw as counsel. See Anders v. California, 386 U.S. 738
(1967). We received no response from Mr. Trejo-Alvarez, and the government
* After examining counsel’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. also declined to respond. For the reasons set forth below, we discern no
meritorious issues for appeal, and we therefore grant the motion to withdraw and
dismiss the appeal.
***
A native of Mexico, Mr. Trejo-Alvarez was found in Doña Ana County,
New Mexico in October 2006, after having been deported from the United States
on four prior occasions. He was charged with one count of illegal re-entry
following deportation, in violation of 8 U.S.C. § 1326. Because his prior
deportation was subsequent to a felony conviction, Mr. Trejo-Alvarez faced a
possible prison sentence of up to ten years. See id. § 1326(b)(1). Mr. Trejo-
Alvarez pled guilty to a one-count information charging him with reentry of a
removed alien.
Pursuant to the advisory United States Sentencing Guidelines, Mr. Trejo-
Alvarez’s conviction carried a base offense level of 8. See U.S.S.G. § 2L1.2(a).
But because he had been deported following a felony conviction, the Guidelines
recommended a 4-level enhancement. See id. § 2L1.2(b)(1)(D). Subtracting 2
levels for acceptance of responsibility, Mr. Trejo-Alvarez’s final suggested
offense level was 10. Because of his prior criminal convictions, Mr. Trejo-
Alvarez was classified at criminal history category level V. That offense level
and criminal history category resulted in a proposed Guidelines sentencing range
of 21-27 months imprisonment.
-2- Mr. Trejo-Alvarez did not challenge the facts set forth in the presentence
report, which included the Guidelines range calculation and information about his
background, criminal history, and other potentially relevant factors. He did,
however, file a sentencing memorandum pointing out that all of the points
assessed in determining his criminal history category were for immigration
violations. Mr. Trejo-Alvarez suggested that, in these circumstances, his
criminal history was overstated. He argued that a lesser criminal history
category, leading to a suggested Guidelines range sentence of 15-21 months
imprisonment, was more appropriate. Even so, Mr. Trejo-Alvarez argued that the
district court should depart or vary downward and sentence him to 12 months and
1 day in prison. This was a more reasonable sentence, he argued, in light of the
immigration-related nature of his recent convictions and having ailing elderly
parents at home in Mexico.
The district court disagreed. While Mr. Trejo-Alvarez’s criminal history
points were assessed for immigration offenses, Mr. Trejo-Alvarez also had 13
past convictions that were not considered under the Guidelines. The court said
that there were “too many prior convictions, and the nature of the offenses are
simply too serious for the Court to simply disregard, and say that under Booker, a
12-month and one day sentence is appropriate.” May 24, 2007, Sentencing Hr’g
Tr. at 9-10. The court distinguished Mr. Trejo-Alvarez’s situation from those
who came to this country only to work and whose only prior criminal acts are
-3- illegal entry or re-entry. Mr. Trejo-Alvarez had repeatedly been “involved in
fights, and drinking, and stealing . . . [a]nd resisting officers” since he arrived in
the United States. Id. at 10. The district court acknowledged the factors in 18
U.S.C. § 3553(a) and the facts set forth in the presentencing report, and sentenced
Mr. Trejo-Alvarez to 21 months in prison, followed by two years of unsupervised
release, the low end of the suggested Guidelines range. 1
Pursuant to the Supreme Court’s decision in Anders v. California, a court-
appointed defense counsel may “request permission to withdraw [from an appeal]
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). This process requires counsel to
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. (citing Anders, 386 U.S. at 744).
1 Because Mr. Trejo-Alvarez was convicted while on supervised release from a prior immigration conviction in the District of Arizona, a petition to revoke supervision was filed in the District of Arizona and jurisdiction was transferred to the District of New Mexico. The district court sentenced Mr. Trejo- Alvarez to 12 months for the violation of the terms of his release, but allowed the sentence to run concurrently with the 21-month sentence it had just imposed.
-4- In his Anders brief, counsel noted that this appeal would conceivably be
meritorious only if (1) the guilty plea were not voluntary or (2) the sentence were
unreasonable. After conducting a full examination of the record, we agree with
counsel’s conclusion that no basis in law or fact exists for either of these
arguments.
A valid guilty plea must be knowingly, intelligently, and voluntarily made.
See United States v. Gigot, 147 F.3d 1193, 1197 (10th Cir. 1998); see also Fed. R.
Crim. P. 11. The record indicates that the district court fulfilled the requirements
set out in Rule 11 and those announced in Gigot to ensure the validity of the plea.
See generally Jan. 31, 2007, Plea Hr’g Tr. (reflecting that the district court judge
verified a factual basis for the plea, questioned the defendant and confirmed that
he fully understood the charges against him and the consequences of the plea, and
otherwise ensured that the plea was freely, voluntarily, and intelligently made).
Mr. Trejo-Alvarez has failed to put forward any evidence or arguments that would
place the plea’s validity in doubt, and so any appeal on these grounds would be
frivolous.
We also fail to find any non-frivolous grounds for appeal as to the
reasonableness of the sentence. As counsel points out, Mr. Trejo-Alvarez was
sentenced at the low end of the advisory Guidelines range. As such, we accord a
presumption of reasonableness to his sentence. See Rita v. United States, 127 S.
Ct. 2456, 2462-63 (2007); United States v. Garcia-Lara, 499 F.3d 1133, 1136-37
-5- (10th Cir. 2007). Expressly bearing in mind the various sentencing factors set
forth by Congress in 18 U.S.C. § 3553(a), the district court acknowledged and
considered Mr. Trejo-Alvarez’s argument for a reduced sentence, but it ultimately
decided that the Guidelines-recommended range was appropriate under the
§ 3553(a) factors, in light of Mr. Trejo-Alvarez’s history and characteristics. We
can find no evidence in the record to suggest any abuse of discretion by the
district court in the procedures it employed at sentencing or the substantive result
it reached.
For the foregoing reasons, we grant counsel’s motion to withdraw and
ENTERED FOR THE COURT
Neil M. Gorsuch Circuit Judge
-6-