FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                            May 2, 2017
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 16-6285
                                                   (D.C. No. 5:15-CR-00239-F-1)
JOSE LUIS MURGUIA-MARQUEZ,                                 (W.D. Okla.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, O’BRIEN, and MORITZ, Circuit Judges.
                  _________________________________

      Jose Luis Murguia-Marquez appeals his conviction for unlawful reentry into

the United States after removal, see 8 U.S.C. § 1326, and his resulting 37-month

prison sentence. Defense counsel has filed an Anders brief and moved to withdraw as

counsel. See Anders v. California, 

, 744 (1967) (stating that if after

“conscientious examination” of record, counsel finds appeal “wholly frivolous,”

counsel may move to withdraw and contemporaneously file “brief referring to

anything in the record that might arguably support the appeal”). Murguia-Marquez

      *
         After examining the Anders brief and appellate record, this panel has
determined unanimously that oral argument wouldn’t materially assist in the
determination of this appeal. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The
case is therefore submitted without oral argument. This order and judgment isn’t
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P.
32.1; 10th Cir. R. 32.1.
failed to file a pro se response, and the government declined to file a brief. We have

reviewed the Anders brief and conducted a full examination of the record to

determine whether Murguia-Marquez’ appeal is wholly frivolous. See United States

v. Calderon, 

, 930 (10th Cir. 2005). Because we agree that it is, we

dismiss the appeal and grant defense counsel’s motion to withdraw. See 

.

      Murguia-Marquez has been removed from the United States many times. After

a 2015 traffic stop led to his arrest, Murguia-Marquez was charged with one count of

unlawfully reentering the United States after removal. The government filed a motion

in limine to preclude Murguia-Marquez from collaterally attacking at trial the

validity of his prior removals. The district court set a deadline for Murguia-Marquez

to respond to the government’s motion and ordered him to file, by the same deadline,

any motion to dismiss based on the validity of his prior removals. After Murguia-

Marquez failed to do either, the district court granted the government’s motion.

Murguia-Marquez then pleaded guilty, and the district court sentenced him within the

Guidelines.

      In her Anders brief, defense counsel states that “[t]he only basis for this appeal

asserted by Mr. Murguia-Marquez is that one of his previous removals was not

ordered by a judge.” Anders Br. 15. We construe that argument as an attack on the

validity of one of Murguia-Marquez’ prior removals. Defense counsel doesn’t

elaborate on the basis for that argument or how it might warrant disturbing Murguia-

Marquez’ conviction or sentence. But our independent review of the record suggests

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that no challenge to the validity of Murguia-Marquez’ prior removals would provide

a non-frivolous basis for appeal.

      At the outset, we note that Murguia-Marquez waived all non-jurisdictional

challenges to his conviction by entering a guilty plea. See United States v. Dwyer,

, 1170 (10th Cir. 2001). Neither the Anders brief nor the record

indicates that the district court’s jurisdiction depended on the validity of Murguia-

Marquez’ prior removals. Accordingly, with respect to his conviction, Murguia-

Marquez waived any challenge to the validity of his prior removals—or any other

non-jurisdictional challenge, for that matter—by entering a guilty plea. See 

only Murguia-Marquez’ sentence. In reviewing that sentence, we

“must first ensure that the district court committed no significant procedural error.”

United States v. Lucero, 

, 1246 (10th Cir. 2014) (quoting Gall v.

United States, 

, 51 (2007)). “If the district court’s decision is

‘procedurally sound,’ we ‘then consider the substantive reasonableness of the

sentence imposed.’” 

552 U.S. at 51).

      A sentence is procedurally unreasonable if, e.g., the district court constructs it

on the basis of clearly erroneous facts. United States v. Worku, 

, 1201

(10th Cir. 2015). Here, the record indicates that the district court relied on Murguia-

Marquez’ prior removals in constructing his sentence: the court explained, “The

reason for [the] intended sentence is . . . [Murguia-Marquez’] history of . . . repeated

illegal[] reentries into the United States . . . .” R. vol. 3, 51. Thus, Murguia-Marquez



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might be able to demonstrate procedural error if the district court clearly erred in

finding that he repeatedly and illegally reentered the United States.

      But we see nothing in the record to support that conclusion. Even if Murguia-

Marquez could demonstrate that his prior removals were invalid—as defense counsel

indicates he wants to do—that wouldn’t necessarily call into question the district

court’s finding that Murguia-Marquez repeatedly and illegally reentered the United

States. See United States v. Earle, 

, 547 (1st Cir. 2007) (“In an illegal

reentry prosecution, the lawfulness of deportation simply is not an element of the

offense.”). Thus, any procedural challenge to the district court’s reliance on Murguia-

Marquez’ prior reentries would be frivolous.

      Any challenge to the substantive reasonableness of Murguia-Marquez’

sentence would also be frivolous. Substantive reasonableness depends on “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. Alapizco-

Valenzuela, 

, 1215 (10th Cir. 2008) (quoting United States v. Conlan,

, 1169 (10th Cir. 2007)). “When reviewing a sentence for substantive

reasonableness, this court employs the abuse-of-discretion standard, a standard

requiring ‘substantial deference to district courts.’” United States v. Friedman, 

, 1307 (10th Cir. 2009) (internal citation omitted) (quoting United States v.

Sells, 

, 1237 (10th Cir. 2008)). And because Murguia-Marquez’

sentence falls within the Guidelines range, his sentence “is entitled to a presumption

of substantive reasonableness on appeal.” 

. Of

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course, Murguia-Marquez “may rebut this presumption by showing that his sentence

is unreasonable in light of” the § 3553(a) factors. 

see nothing in the record

to indicate that Murguia-Marquez can make that showing. Accordingly, we conclude

that any challenge to the substantive reasonableness of Murguia-Marquez’ sentence

would also be frivolous.

      Because our examination of the record reveals no other non-frivolous basis for

appeal, we dismiss the appeal and grant defense counsel’s motion to withdraw. See

.


                                            Entered for the Court


                                            Nancy L. Moritz
                                            Circuit Judge




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