FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                November 4, 2010
                               TENTH CIRCUIT
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court

 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,                      No. 10-2116
 v.                                                  (D. New Mexico)
 ARNULFO REYES-TORRES,                        (D.C. No. 2:09-CR-03452-WJ-1)

             Defendant - Appellant.


                          ORDER AND JUDGMENT *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.


      This appeal concerns the second conviction of Arnulfo Reyes-Torres in the

United States District Court for the District of New Mexico. His first conviction

was for transporting illegal aliens. On September 9, 2002, he was sentenced in

that case to eight months’ imprisonment. He was removed from the United States

in July 2003. On May 10, 2009, he was arrested in Las Cruces, New Mexico, for

shooting from a motor vehicle, a fourth-degree felony. He was convicted of the


      *
       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. This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and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.
offense in state court and sentenced to three years’ incarceration, with all but 115

days suspended. He was then indicted in federal court on one count of unlawful

entry by a deported alien. See 8 U.S.C. § 1326(a) and (b). He pleaded guilty and

the district court sentenced him to 41 months’ imprisonment, followed by three

years of supervised release.

      On appeal from that conviction Mr. Reyes-Torres’s counsel has filed an

Anders brief and moved to withdraw as counsel. See Anders v. California, 

(1967). The clerk of this court sent Mr. Reyes-Torres notice of his right

to respond to the Anders brief, see 

(defendant must be given a copy of

the Anders brief and provided time to respond), and he responded in a pleading

titled “Motion Under 28 U.S.C. § to Vacate Set Aside.” Agreeing that there are

no meritorious issues on appeal, we grant the motion to withdraw and dismiss the

appeal.

I.    DISCUSSION

      Under Anders if an attorney examines a case and determines that an appeal

desired by his client would be “wholly frivolous,” counsel may “so advise the

court and request permission to withdraw.” 

submit a brief to

both the appellate court and the client, pointing to anything in the record that

could potentially present an appealable issue. See 

may then choose

to offer argument to the court. See 

close examination of the record,




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the court determines that the appeal is frivolous, it may grant counsel’s request to

withdraw and dismiss the appeal. See 

an independent examination of the record, we agree with

counsel’s conclusion that no conceivably meritorious basis for appeal exists. In

particular, we have considered the voluntariness of Mr. Reyes-Torres’s plea, the

calculation of his advisory guidelines sentencing range, and the reasonableness of

his sentence.

      A valid guilty plea must be knowing, intelligent, and voluntary. See United

States v. Gigot, 

, 1197 (10th Cir. 1998); see also Fed. R. Crim.

P. 11. The plea agreement signed by Mr. Reyes-Torres states that his plea was

“freely and voluntarily made,” R., Vol. 1 at 16, and the magistrate judge fulfilled

the requirements of Rule 11 in accepting the plea. The judge verified a factual

basis for the plea; questioned Mr. Reyes-Torres to confirm that he understood the

charges against him; informed him of the maximum possible penalty provided by

law and of the consequences of the plea; and otherwise ensured that the plea was

freely, voluntarily, and intelligently made.

      Mr. Reyes-Torres’s guideline range was calculated correctly. Under the

advisory United States Sentencing Guidelines, Mr. Reyes-Torres’s conviction

carried a base offense level of 8, see USSG § 2L1.2(a), and his prior deportation

following a felony conviction for transporting illegal aliens—an offense

punishable by 10 years’ imprisonment—required a 16-level enhancement. See 

§ 2L1.2(b)(1)(A)(vii). Under USSG § 5K3.1 the government agreed to a four-

level reduction because Mr. Reyes-Torres demonstrated an acceptance of

responsibility for the offense of conviction and waived his appellate rights.

Mr. Reyes-Torres’s offense level was therefore properly calculated at 20. His

sentences of imprisonment for his prior state and federal convictions gave him a

criminal-history score of 4, see USSG § 4A1.1(b), which corresponded to a

criminal-history category of III, and resulted in a sentencing guideline range of 41

to 51 months. See 

5, pt. A.

      In addition, there is no nonfrivolous ground for challenging the

reasonableness of Mr. Reyes-Torres’s sentence. The district court sentenced him

at the low end of the applicable guidelines range. A properly calculated sentence

within the guidelines range is accorded a presumption of reasonableness. See

United States v. Kristl, 

, 1054 (10th Cir. 2006). Moreover, the

court explained its sentence in terms of the factors under 18 U.S.C. § 3553(a).

Mr. Reyes-Torres argues in this court that his criminal-history category is over-

represented and that a downward departure or variance is appropriate. He refers

to his counsel’s sentencing memorandum submitted to the district court, which

argued that his prior federal conviction resulted from his merely taking his turn

driving and his state conviction resulted from mere reckless behavior caused by

intoxication. We are not persuaded that he has rebutted the presumption of

reasonableness.

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II.   CONCLUSION

      We conclude, as did defense counsel, that there are no meritorious issues

for appeal. We GRANT counsel’s motion to withdraw and DISMISS the appeal.

                                     ENTERED FOR THE COURT


                                     Harris L Hartz
                                     Circuit Judge




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