Filed: Mar. 31, 2010
Latest Update: Mar. 02, 2020
Summary: , **, After examining the briefs and the appellate record, this three-judge, panel has determined unanimously that oral argument would not be of material, assistance in the determination of this appeal.challenges to the plea hearing for plain error.either his conviction or his sentence.
FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
March 31, 2010
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 09-6168
v. (W.D. of Okla.)
JOSE GARCIA-CONCEPCION, (D.C. No. 5:09-CR-00086-M-1)
a/k/a Rogelio Perez-Gonzales, a/k/a
Garcia Jose Martinez, a/k/a Steve
Jasso-Garcia, a/k/a Steve Garcia,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges. **
Jose Garcia-Concepcion pleaded guilty to illegally reentering the United
States in violation of 18 U.S.C. § 1326(a). He timely filed a notice of appeal.
Finding no meritorious grounds for an appeal, Garcia-Concepcion’s counsel
*
This order and judgment is not binding precedent except under the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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
moved to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). After
reviewing counsel’s brief and conducting an independent review of the record, we
agree with counsel that there are no meritorious appellate issues.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we therefore GRANT
counsel’s motion to withdraw and AFFIRM Garcia-Concepcion’s conviction and
sentence.
I. Background
Garcia-Concepcion was removed from the United States in 2002 after a
conviction for drug trafficking. In April 2009, he was found to have returned to
the United States without consent and charged with illegal entry. In a May 2009
hearing, Garcia-Concepcion pleaded guilty to illegally reentering the United
States in violation of 18 U.S.C. § 1326(a). The applicable Sentencing Guidelines
range for that offense was 46 to 57 months. Through counsel, Garcia-Concepcion
requested a downward departure, arguing that he merely returned to the United
States to be closer to his daughter. Noting Garcia-Concepcion’s criminal history,
the district court did not grant the downward departure but did sentence him to 46
months imprisonment followed by three years of supervised release.
II. Discussion
Under Anders, defense counsel may “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).
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If counsel makes that determination, he or she may “submit a brief to the client
and the appellate court indicating any potential appealable issues based on the
record.” Id. The client may also submit arguments to the court in response. We
must then fully examine the record “to determine whether defendant’s claims are
wholly frivolous.”
Id. If we find they are, we may dismiss the appeal.
The only possible bases for Garcia-Concepcion’s appeal are the district
court’s decision to accept his guilty plea and the substantive reasonableness of his
sentence. Because Garcia-Concepcion did not assert any error during his Rule 11
sentencing hearing, nor move to withdraw his guilty plea, we review any
challenges to the plea hearing for plain error. United States v. Cano-Varela, 497
F.3d 1122, 1131 (10th Cir. 2007). “To show Rule 11 plain error, a defendant
must show (1) error that (2) is plain which (3) affected his substantial rights and
(4) seriously affected the fairness, integrity or public reputation of judicial
proceedings.”
Id. (quotations omitted).
Having carefully reviewed the record, we conclude the district court did not
commit any error in accepting Garcia-Concepcion’s guilty plea. At the change of
plea hearing, Garcia-Concepcion stated to the district court that he was alert, was
proceeding voluntarily under his own free will, understood the rights he was
waiving by pleading guilty, was not under the influence of any substance, and
understood the district court could sentence him as if he had been convicted at
trial. The district court also determined the factual basis for the guilty plea and
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complied with all other requirements of Rule 11. Accordingly, any appeal from
the Rule 11 hearing would be wholly frivolous.
We review sentences for reasonableness. United States v. Kristl, 437 F.3d
1050, 1053 (10th Cir. 2006). When a defendant is sentenced within a properly
calculated Guidelines range, the sentence “is entitled to a rebuttable presumption
of reasonableness.”
Id. at 1054. “The defendant may rebut this presumption by
demonstrating that the sentence is unreasonable in light of the other sentencing
factors laid out in [18 U.S.C.] § 3553(a).”
Id. at 1055. Garcia-Concepcion’s
counsel asserts the district court calculated the Guidelines range properly and
made no other procedural errors. We agree, and thus we presume the sentence to
be reasonable. We further find the § 3553(a) factors do not provide a basis for
rebutting the presumption in this case. While Garcia-Concepcion requested a
downward departure based on his desire to be closer to his child, the district court
found his criminal history in drug trafficking as weighing against any further
mitigation of his sentence. Seeing no substantive error, we conclude the 46-
month sentence is reasonable.
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III. Conclusion
We agree no meritorious basis exists for Garcia-Concepcion’s appeal of
either his conviction or his sentence. We therefore GRANT his counsel’s motion
to withdraw and AFFIRM Garcia-Concepcion’s conviction and sentence.
ENTERED FOR THE COURT,
Timothy M. Tymkovich
Circuit Judge
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