F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      June 12, 2006
                                   TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                      Clerk of Court



 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
 v.                                                     No. 05-2264
 JUAN AGUILA R-DUEN AS,                          (D.C. No. CR-04-2499-JC)
                                                     (D. New M exico)
          Defendant-Appellant.



                                OR D ER AND JUDGM ENT *


Before H ENRY, BRISCO E, and O’BRIEN, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is,

therefore, ordered submitted without oral argument.

      Juan Aguilar-Duenas appeals his sentence for illegal reentry after

deportation, in violation of 8 U.S.C. § 1326. Counsel for Aguilar-Duenas filed a

brief pursuant to Anders v. California, 

(1967) and moved for leave


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
to withdraw as counsel. W e exercise jurisdiction pursuant to 28 U.S.C. § 1291,

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

      Aguilar-Duenas pleaded guilty, without the benefit of a written plea

agreement, to one count of reentering the United States following deportation

after conviction for an aggravated felony. The presentence report (PSR)

calculated a total offense level of twenty-one based on a base offense level of

eight, a sixteen-level increase for previously being deported following conviction

for an aggravated felony, and a three-level reduction for acceptance of

responsibility. The PSR also calculated a criminal history category of II which,

when combined with the offense level of twenty-one, resulted in a guideline range

of forty-one to fifty-one months’ imprisonment. Aguilar-Duenas did not object to

the PSR and made no objections at the sentencing hearing on August 18, 2005.

His counsel requested only that the court sentence him at the low end of the

guideline range. The district court complied with that request and sentenced

Aguilar-Duenas to forty-one months’ imprisonment. At his client’s request,

counsel timely filed this appeal.

      Counsel for Aguilar-Duenas filed an Anders brief. Pursuant to Anders, “if

counsel finds [a defendant’s] case to be wholly frivolous, after a conscientious

examination of it, [counsel] should so advise the court and request permission to

. Upon receiving an Anders brief, we are required to

conduct “a full examination of all the proceedings” and “decide whether the case

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is wholly frivolous.” 

case is frivolous, we may grant counsel’s request

to withdraw and dismiss the appeal. 

the other hand, we find “any of the

legal points arguable on their merits,” we “must, prior to decision, afford the

indigent the assistance of counsel to argue the appeal.” 

his A nders brief, counsel asserts that this case raises no arguably

appealable issues. Counsel specifically notes that his client’s plea was knowing

and voluntary, there was no error in the guideline calculations, and his sentence

was reasonable. Counsel certified that he provided copies of his Anders brief and

his M otion to W ithdraw as Counsel to Aguilar-Duenas. Neither Aguilar-Duenas

nor the government has filed a response brief. After fully examining the record

and counsel’s brief, we conclude this appeal is wholly frivolous.

      In the absence of a waiver of the right to appeal, we can set aside a plea on

a direct appeal if we find the plea was not knowingly and voluntarily made. Fed.

R. Crim. P. 11(e); United States v. Asch, 

, 1242 (10th Cir. 2000);

see also Fields v. Gibson, 

, 1212-13 (10th Cir. 2002) (“The Due

Process Clause of the Fourteenth Amendment requires that a defendant knowingly

and voluntarily enter a plea of guilty.”). W hether a defendant’s plea was

knowing, intelligent, and voluntary is a question of law this court reviews de

novo. 

.

      At the plea hearing, the district court found that the plea was knowingly

and voluntarily entered, and we see nothing in the record to persuade us

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otherwise. In response to questions posed by the district court, Aguilar-Duenas

stated he completed twelve years of education, had never been treated for any

drug or alcohol addiction, was not currently under treatment for a drug or alcohol

addiction or mental illness, and had not been forced or threatened to plead guilty.

ROA, Vol. III at 6-8. He also stated that he understood the charge against him

and the maximum penalties associated with the charge and that he had spoken to

his attorney about his case and was satisfied with the advice he received. 

9. The court advised Aguilar-Duenas he had the right to plead not guilty and

proceed to trial. 

Additionally, the court explained the consequences of a

guilty plea, including that Aguilar-Duenas could face deportation. 

Based on these facts, we conclude the plea was knowingly and voluntarily

entered.

      As to the guideline calculations, because Aguilar-Duenas did not object to

the calculations in the district court, we review only for plain error. United States

v. Tisdale, 

, 981 (10th Cir. 2001). “Plain error occurs w hen there is

(1) error, (2) that is plain, which (3) affects substantial rights, and which (4)

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” U nited States v. Gonzalez-Huerta, 

, 732 (10th Cir.

2005) (internal quotation marks omitted). Here, we need not consider more than

the first prong as the district court did not err in its guideline calculations. The

base offense level for unlaw fully entering or remaining in the United States is

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eight. U.S.S.G. § 2L1.2. The presentence report revealed that Aguilar-Duenas

had been previously deported following a conviction for second degree murder.

This triggered a sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A) and

resulted in a total offense level of twenty-one. Aguilar-Duenas had a criminal

history category of II and received a three-level adjustment for acceptance of

responsibility pursuant to U.S.S.G. § 3E1.1. Based on this information, the

presentence report calculated a guideline range of forty-one to fifty-one months’

imprisonment. U.S.S.G. § 5A. The district court did not err in adopting these

calculations.

      Last, regarding the reasonableness of the district court’s sentence, we

review this issue under the plain-error standard, and again find the district court

committed no error. United States v. Lopez-Flores, 

, 1221 (10th

Cir. 2006).

      After Booker, we review sentences for reasonableness. United States v.

K ristl, 

, 1055 (10th Cir. 2006). “W e require reasonableness in tw o

respects – the length of the sentence, as well as the method by which the sentence

was calculated.” 

(internal quotation marks

omitted). “[A] sentence that is properly calculated under the Guidelines is

entitled to a rebuttable presumption of reasonableness.” 

.

W hile this standard is deferential, it “may be rebut[ted] by demonstrating that the

sentence is unreasonable when viewed against the other factors delineated in §

                                         -5-
3553(a).” 

length of the sentence, at the low end of the Guidelines, is

entitled to a presumption of reasonableness. However, it is not apparent from the

transcript of the sentencing proceedings that the district court considered the

factors set out in 18 U.S.C. § 3553(a). During the sentencing hearing of A guilar-

Duenas, the totality of which lasted a mere four minutes, the district court gave

the following reasoning prior to imposing sentence:

      Court has reviewed the Presentence Report factual findings and has
      considered the sentencing guideline applications. The offense level
      is 21. The criminal history category is II. The guideline
      imprisonment range is 41 to 51 months. The Guidelines are not
      binding on me. The court notes the defendant reentered the United
      States after previously being deported subsequent to being convicted
      of an aggravated felony.

ROA, Vol. IV at 3.

      This court does “not demand that the district court recite any magic words

to show us that it fulfilled its responsibility to be mindful of the [§ 3553(a)]

factors that Congress has instructed it to consider.” United States v. M ares, 

, 1161 (10th Cir. 2006) (internal quotation marks omitted). District

courts, however, are required to provide sufficient reasons for their discretionary

sentencing decisions in order for this court to perform meaningful appellate

review. United States v. Sanchez-Juarez, 

, 1117 (10th Cir. 2006).

Accordingly, “where a defendant has raised a nonfrivolous argument that the §

3553(a) factors warrant a below-Guidelines sentence . . . ,” the record must show

                                          -6-
“that the sentencing judge did not rest on the guidelines alone, but considered

whether the guidelines sentence actually conforms, in the circumstances, to the

statutory factors.” 

marks and alterations omitted). The

corollary also holds true. “W hen the defendant has not raised any substantial

contentions concerning non-Guidelines § 3553(a) factors and the district court

imposes a sentence within the Guidelines range, our post-Booker precedents do

not require the court to explain on the record how the § 3553(a) factors justify the

sentence.” 

.

      In the present case, counsel for Aguilar-Duenas asked only “that the Court

give consideration to a low end of the Guidelines of 41 months for M r. Aguilar.”

ROA, Vol. IV at 2. Counsel continued by noting: “H e has a good family here in

New M exico. He has suffered some serious losses in his life, and as an older

person he most definitely understands the law and respects it and doesn’t want to

spend any more time in jail than he has to.” 

did not

advance any argument that the § 3553(a) factors warranted a sentence below the

guideline range. Neither did Aguilar-Duenas, who stated only: “I just want to say

I’m getting too old for this and next chance I get I’m going back to M exico and

I’m staying there.” 

requested only that he be

sentenced to the bottom of the guideline range, and the district court imposed a

sentence within the guideline range, the district court was not required to explain

on the record how the § 3553(a) factors justify the sentence. Accordingly, we

                                         -7-
conclude that there is nothing in the record to suggest that the sentence was

unreasonable.

      Because Aguilar-Duenas has not shown any meritorious grounds for appeal,

we GRANT his counsel’s request to withdraw and DISM ISS the appeal.


                                               Entered for the Court


                                               M ary Beck Briscoe
                                               Circuit Judge




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