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

                            FOR THE TENTH CIRCUIT                          October 31, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                    Nos. 18-2177 & 18-2183
                                                  (D.C. Nos. 1:18-CR-02662-TM-1 &
 INOCENTE FABIAN-PENALOZA,                              2:18-CR-02736-TM-1)
                                                               (D. N.M.)
       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT *
                        _________________________________

Before HOLMES, MURPHY, and CARSON, Circuit Judges. **
                 _________________________________

      Defendant Inocente Fabian-Penaloza pleaded guilty to illegal re-entry in

violation of 8 U.S.C. § 1326(a). The illegal re-entry guilty plea also served as the

factual basis for the revocation of his supervised release in another case. The district

court sentenced Defendant to forty-five months’ imprisonment for illegal re-entry

and fourteen months’ imprisonment in the revocation matter, to be served

consecutively. Defendant now challenges these sentences on appeal.


      *
         This order and judgment is not binding precedent, except under the doctrines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 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
submitted without oral argument.
      Defendant’s counsel, however, believes that any appeal relating to Defendant’s

sentences is destined to fail, and she therefore moves to withdraw as counsel under

Anders v. California, 

(1967).

      The Supreme Court’s decision in Anders . . . authorizes counsel to
      request permission to withdraw where counsel conscientiously examines
      a case and determines that any appeal would be wholly frivolous. Under
      Anders, counsel must submit a brief to the client and the appellate court
      indicating any potential appealable issues based on the record. The client
      may then choose to submit arguments to the court. The Court must then
      conduct a full examination of the record to determine whether [the]
      defendant’s claims are wholly frivolous. If the court concludes after such
      an examination that the appeal is frivolous, it may grant counsel’s motion
      to withdraw and may dismiss the appeal.

United States v. Calderon, 

, 930 (10th Cir. 2005) (citations omitted)

(citing 

).

      Neither Defendant nor the government has responded to counsel’s Anders

brief. Nonetheless, we have carefully examined both the record and the “potential

appealable issues” that Defendant’s counsel dutifully raises. 

doing so,

we agree with Defendant’s counsel that “there are no non-frivolous issues upon

which [Defendant] has a basis for appeal.” 

the illegal re-entry sentence, the district court committed no procedural

error when fashioning Defendant’s forty-five-month sentence. Under a stipulated

plea, the district court properly calculated Defendant’s sentencing range to be 46–57

months’ imprisonment under the United States Sentencing Guidelines




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(“Guidelines”). 1 Without a two level reduction contemplated by the stipulated plea,

the parties agree that the district court properly calculated the applicable Guidelines

range to be 57–71 months’ imprisonment. See United States v. Sanchez-Leon, 

, 1261 (10th Cir. 2014) (“Procedural error includes ‘failing to calculate (or

improperly calculating) the Guidelines range . . . .’” (quoting Gall v. United States,

, 51 (2007))). The sentencing transcript expressly demonstrates that the

district court did not view that range as mandatory. See 

includes . . . ‘treating the Guidelines as mandatory . . . .’” (quoting 

)). At Defendant’s request, the district court rejected the stipulated plea and

assured Defendant that he would be better off apart from the plea agreement.

Consistent with that assurance, the district court varied downward from the

Guidelines range and sentenced Defendant to forty-five months’ imprisonment;

twelve months less than the applicable Guidelines range and one month less than the

range contemplated by the stipulated plea.

      Further, the district court expressly considered the 18 U.S.C. § 3553(a)

sentencing factors and refrained from relying on any clearly erroneous facts when it

sentenced Defendant to a sentence below the low-end of the Guidelines range. See

includes . . . ‘failing to consider the § 3553(a) factors [and]

selecting a sentence based on clearly erroneous facts . . . .’” (quoting 

)). And finally, the district court considered and rejected Defendant’s arguments


      1
        This calculation included a three level reduction for acceptance of
responsibility and an additional two level reduction pursuant to the plea agreement.
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for a greater downward variance from that below-Guidelines sentence, the most

notable of which was based on Defendant’s disagreement on policy grounds with the

applicable Guideline from which his sentencing range stemmed. See 

includes . . . ‘failing to adequately explain the chosen sentence . . . .’” (quoting

)); 

(observing that a district court adequately explains

the chosen sentence only when it “consider[s] the parties’ arguments” (quoting Rita

v. United States, 

, 356 (2007))).

       Defendant’s sentence is also substantively reasonable. A sentence below or

within the applicable Guidelines range is entitled to a “rebuttable presumption of

[substantive] reasonableness” on appeal. United States v. Balbin-Mesa, 

, 788 (10th Cir. 2011). And that “presumption of reasonableness holds true even

if the Guideline at issue arguably contains serious flaws or otherwise lacks an

empirical basis.” United States v. Wireman, 

, 964 (10th Cir. 2017)

(emphasis in original) (internal quotation marks, citation, and alteration omitted).

Thus, Defendant’s belief that his sentence is too long based on his policy

disagreement with the Guidelines is insufficient standing alone to render his 45-

month sentence substantively unreasonable. Even if that policy-based argument is

“quite forceful,” United States v. Regan, 

, 1354 (10th Cir. 2010),

Defendant can rebut the presumption of reasonableness on appeal only “by

demonstrating [that] his sentence is unreasonable when viewed in light of the

§ 3553(a) factors.” United States v. Grigsby, 

, 910 (10th Cir. 2014).

But none of the § 3553(a) factors are so forceful as to rebut that presumption.

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       Indeed, we recognize the district court spoke on each § 3553(a) factors and

noted Defendant’s history of illegal re-entry, prior charges of harboring aliens, past

violations of his supervised release, and frequently recurring nature of his misconduct

in describing the basis for the sentence. See 18 U.S.C. § 3553. The sentencing

transcript confirms that the district court also recognized Defendant’s policy

argument and its own assurance regarding the rejected stipulated plea in granting a

downward variance from the Guidelines. We discern no abuse of discretion in that

rationale. See United States v. DeRusse, 

, 1236 (10th Cir. 2017)

(observing that we review a sentence for substantive reasonableness “under a

deferential abuse-of-discretion standard” (citation omitted)).

       As to the revocation matter, the district court committed no procedural error

when fashioning Defendant’s fourteen-month sentence. First, the district court

properly calculated Defendant’s applicable Guidelines range to be 8–14 months’

imprisonment. See 

. The sentencing transcript again

confirms that the district court did not view that range as mandatory. See 

district court incorporated by reference the entirety of the original sentencing

proceeding for the revocation matter and specifically acknowledged the § 3553(a)

factors.

       Defendant’s revocation sentence is also substantively reasonable. The district

court imposed a presumptively reasonable, within-Guidelines sentence of fourteen

months’ imprisonment, to be served consecutively with the illegal re-entry sentence.

See 

. Consistent with the above reasoning, none of the

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§ 3553 (a) factors are so forceful as to rebut that presumption of reasonableness

herein. Further, it is well-established that “sentencing a defendant to consecutive

sentences following the revocation of supervised release is not unreasonable.”

United States v. Rodriguez-Quintanilla, 

, 1257 (10th Cir. 2006).

Accordingly, we discern no abuse of discretion in the district court’s rationale as to

the reasonableness of the revocation sentence. See United States v. Ruby, 

, 1225 (10th Cir. 2013) (observing that we review a challenge to a revocation

sentence for abuse of discretion).

      Defendant’s counsel was unable to think of any other potential appealable

issues besides the procedural and substantive reasonableness of Defendant’s

sentences. We are likewise unable to discern any issues after our own searching

review of the record. We therefore agree with Defendant’s counsel that Defendant’s

appeal is wholly frivolous, grant counsel’s motion to withdraw under Anders, and

dismiss this appeal.


                                            Entered for the Court


                                            Joel M. Carson III
                                            Circuit Judge




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