FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                      UNITED STATES COURT OF APPEALS                     October 16, 2008

                                       TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                           Clerk of Court


 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

 v.                                                           No. 07-2285
                                                   (D. Ct. No. 2:07-CR-01809-WJ-1)
 RAYMUNDO VALENZUELA-                                        (D. N. Mex.)
 RAMIREZ,

               Defendant - Appellant.


                              ORDER AND JUDGMENT*


Before TACHA, KELLY, and McCONNELL, Circuit Judges.


       Defendant-Appellant Raymundo Valenzuela-Ramirez pleaded guilty to a one-

count information charging him with illegally reentering the country after previously

being deported in violation of 8 U.S.C. § 1326(a)(1) and (2), and § 1326(b)(2). He was

sentenced to 41 months’ imprisonment. His attorney filed a timely notice of appeal,

followed by a brief and motion to withdraw pursuant to Anders v. California, 

, 744 (1967). After reviewing the record, we agree that there are no meritorious issues

to raise on appeal. Accordingly, we GRANT the motion to withdraw and DISMISS Mr.



       *
        This order and judgment is not binding precedent except under the doctrines of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.
Valenzuela-Ramirez’s appeal.

                                   I. BACKGROUND

       On July 5, 2007, border patrol agents found Mr. Valenzuela-Ramirez, a citizen and

national of Mexico, in the United States where he freely admitted that he was illegally

present in the country. Subsequent criminal and immigration checks revealed that Mr.

Valenzuela-Ramirez had previously been deported after three convictions for transporting

illegal aliens. He was then charged with and pleaded guilty to one count of illegal

reentry under 8 U.S.C. § 1326(a)(1) and (2), and § 1326(b)(2).

       The presentence report (“PSR”) determined the base offense level to be 8. See

U.S.S.G. § 2L1.2(a). The PSR recommended a sixteen-level enhancement because Mr.

Valenzuela-Ramirez had previously been deported after a conviction for an alien

smuggling offense. See § 2L1.2(b)(1)(A)(vii). After a three-level reduction for

acceptance of responsibility, see § 3E1.1(a) and (b), the PSR recommended a total offense

level of twenty-one. Mr. Valenzuela-Ramirez’s criminal history category was II, which

produced an advisory Guidelines range of forty-one to fifty-one months’ imprisonment.

The district court sentenced him to forty-one months.

                                    II. DISCUSSION

       The district court found that Mr. Valenzuela-Ramirez’s guilty plea was made

freely, voluntarily, and intelligently. Mr. Valenzuela-Ramirez never sought to withdraw

his plea below, and there is no indication he wishes to challenge his plea on appeal.

Nonetheless, we have reviewed the record, and we independently find no nonfrivolous

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basis for Mr. Valenzuela-Ramirez to challenge his plea. Thus, we turn to whether Mr.

Valenzuela-Ramirez’s sentence is reasonable. See United States v. Kristl, 

,

1053 (10th Cir. 2006).

       During sentencing, Mr. Valenzuela-Ramirez objected to the sixteen-level

enhancement under § 2L1.2(b)(1)(A)(vii), which applies when the defendant has

previously been deported after “a conviction for a felony that is . . . (vii) an alien

smuggling offense.” The commentary to the Guidelines states that an “alien smuggling

offense” includes all offenses listed in 8 U.S.C. § 1101(a)(43)(N). U.S.S.G. § 2L1.2 cmt.

n.1(B)(i). That statute, in turn, includes offenses under 8 U.S.C. § 1324(a)(1)(A) and

(a)(2) within its definition. 8 U.S.C. § 1101(a)(43)(N). Mr. Valenzuela-Ramirez pleaded

guilty in 1999 to three counts of alien smuggling in violation of § 1324(a)(1)(A)(ii).

Morever, Mr. Valenzuela-Ramirez admitted to the elements of a § 1324(a) smuggling

offense at the sentencing hearing in this case.1 Accordingly, the district court properly

enhanced Mr. Valenzuela-Ramirez’s offense level by sixteen. The district court also

properly determined the base offense level to be 8, see § 2L1.2(a), properly subtracted

three levels for acceptance of responsibility, see § 3E1.1(a) and (b), and properly

calculated his criminal history category. Thus, because the district court correctly

       1
        Under 8 U.S.C. § 1324(a)(1)(A)(ii), a person is guilty of alien smuggling when
“knowingly or in reckless disregard for the fact that an alien has . . . entered . . . the
United States in violation of law, transports . . . such alien within the United States . . . .”
The defendant admitted to driving through Arizona with nine other men who proved to be
in the United States illegally. He also admitted to moving across the Mexican border with
them on foot, clearly establishing a reckless disregard for whether those men were in the
United States legally.

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determined the applicable Guidelines range and sentenced Mr. Valenzuela-Ramirez

within that range, his sentence is presumptively reasonable on appeal. See United States

v. Haley, 

, 1311 (10th Cir. 2008).

       Mr. Valenzuela-Ramirez may rebut this presumption by showing that the factors

listed in 18 U.S.C. § 3553(a) justify a lower sentence. See 

of the record

demonstrates that the district court did not abuse its discretion in refusing to vary

downward. See 

“we generally defer to [a district court’s] decision to

grant, or not grant, a variance based upon its balancing of the § 3553(a) factors” and

review that decision for abuse of discretion). Mr. Valenzuela-Ramirez’s sentence is

reasonable.

                                   III. CONCLUSION

       As required by Anders, we have conducted a full examination of the record before

us. The record establishes no nonfrivolous basis for challenging either Mr. Valenzuela-

Ramirez’s guilty plea or his sentence. Accordingly, we GRANT counsel’s motion to

withdraw and DISMISS this appeal.

                                           ENTERED FOR THE COURT,



                                           Deanell Reece Tacha
                                           Circuit Judge




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