UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

CESAR GUSTAVO PAYAN-CARRILLO, 

 Defendant - Appellant. 

No. 22-2072 

(D.C. No. 2:22-CR-00672-MIS-1) 

(D. N.M.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before MATHESON, KELLY, and ROSSMAN, Circuit Judges.**

_________________________________ 

Defendant-Appellant Cesar Gustavo Payan-Carrillo challenges the district 

court’s imposition of an 18-month consecutive sentence for violation of his 

conditions of supervised release. That sentence runs consecutive to a 24-month 

sentence imposed for his 2021 unlawful reentry. United States v. Cesar Gustavo 

Payan-Carrillo, No. 22-CR-89 (D.N.M. June 1, 2022) (ECF No. 30). Mr. PayanCarrillo does not challenge the 2021 unlawful reentry sentence as that sentence was 

* This order and judgment is not binding precedent, except under the doctrines 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 that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. 

FILED 

United States Court of Appeals 

Tenth Circuit 

January 26, 2023

Christopher M. Wolpert 

Clerk of Court

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imposed pursuant to a fast-track plea agreement with an appeal waiver. Anders Br. at 

1; 2 R. 15. Mr. Payan-Carrillo’s counsel has moved to withdraw and filed a brief 

pursuant to Anders v. California, 386 U.S. 738 (1967), submitting that there are no 

meritorious issues on appeal. On review of the record and the law, we agree. 

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

Background

On or about September 8, 2021, Mr. Payan-Carrillo illegally reentered the 

United States in violation of 8 U.S.C. § 1326(a) & (b), as well as in violation of his 

supervised release imposed in a 2016 unlawful reentry case. 1 R. 22–23. The district 

court held a joint hearing on the revocation matter and sentencing in the 2021 reentry 

case. At the hearing, the court found Mr. Payan-Carrillo voluntarily admitted to the 

violation and waived his right to a hearing in connection with the violation report. 

2 R. 3–4. The court considered Mr. Payan-Carrillo’s argument that past convictions 

may have resulted in overly punitive sentences based on incorrect treatment of a past 

marijuana charge as an aggravated felony but was also concerned about his past 

dangerous behavior associated with prior convictions. Id. 10–12, 16–17. 

Discussion 

Under Anders, counsel may request permission to withdraw if upon thorough 

examination of the record, counsel finds no non-frivolous basis for an appeal. United 

States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005). After counsel submits a brief 

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describing any potential appealable issues to the court and to her client, the defendant 

may then file a response containing his own arguments. Id. Despite being notified of 

his entitlement and granted additional time to do so, Mr. Payan-Carrillo did not file a 

response to counsel’s Anders brief. The government also declined to file a response. 

Counsel’s Anders brief identifies two potentially appealable issues: (1) the 

procedural and substantive reasonableness of the revocation sentence and (2) abuse 

of the district court’s discretion in running the revocation and reentry sentences 

consecutively. Anders Br. at 3. We have conducted our own examination of the 

record, see Calderon, 428 F.3d at 930, and after having done so, we can discern no 

non-frivolous basis for an appeal. 

A. Reasonableness of the revocation sentence 

As no procedural issues were raised at the sentencing hearing, we would 

review the procedural reasonableness of Mr. Payan-Carrillo’s revocation sentence for 

plain error. United States v. Gantt, 679 F.3d 1240, 1246 (10th Cir. 2012). We would 

generally review a sentence’s substantive reasonableness for abuse of discretion, but 

a sentence imposed after revocation of supervised release is generally upheld unless 

“plainly unreasonable.” Gall v. United States, 552 U.S. 38, 51 (2007); United States 

v. Rodriguez-Quintanilla, 442 F.3d 1254, 1256–57 (10th Cir. 2006). Here, the 

district court indicated that it had reviewed the violation report and the sentencing 

factors applicable to supervised release violations. 2 R. 15. The court then 

calculated Mr. Payan-Carrillo’s advisory Guidelines range. Id. 16. Defendant’s new 

reentry offense constituted a Grade B violation of his supervised release, and, with a 

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criminal history category of IV, Mr. Payan-Carrillo’s Guidelines range was 12 to 18 

months. U.S.S.G. § 7B1.4(a). The court thus correctly calculated the advisory 

Guidelines range and sentenced Mr. Payan-Carrillo within it. See 2 R. 16. 

Therefore, the sentence is entitled to a presumption of reasonableness. See Rita v. 

United States, 551 U.S. 338, 347 (2007); United States v. Leonhardt, 301 F. App’x 

817, 820 (10th Cir. 2008) (unpublished). We discern no procedural error to rebut 

that presumption, much less one that is plain. Likewise, we see no nonfrivolous basis 

to challenge the court’s exercise of its discretion in imposing a Guidelines-range 

sentence. 

B. The decision to order the sentences consecutively

We would also review the decision to order consecutive sentences for abuse of 

discretion. Rodriguez-Quintanilla, 442 F.3d at 1256. And, as earlier stated, a 

sentence imposed after revocation of supervised release is generally upheld unless 

“plainly unreasonable.” Id. at 1256–57. In addition to the factors outlined in 18 

U.S.C. § 3553(a), the court’s discretion to order sentences consecutively or 

concurrently is informed by applicable policy statements of the United States 

Sentencing Commission. Id. Relevant here, U.S.S.G. § 7B1.3(f) states that 

[a]ny term of imprisonment imposed upon the revocation of probation 

or supervised release shall be ordered to be served consecutively to any 

sentence of imprisonment that the defendant is serving, whether or not 

the sentence of imprisonment being served resulted from the conduct 

that is the basis of the revocation of probation or supervised release. 

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18 U.S.C. § 7B1.3(f). The defendant carries the burden to demonstrate why ordering 

consecutive sentences would be an abuse of discretion. Rodriguez-Quintanilla, 442 

F.3d at 1256. 

According to the record, after indicating its concerns and considering both 

parties’ arguments, the district court explained its rationale for ordering the sentences 

successively. The district court had sentenced Mr. Payan-Carrillo to the low end of 

the advisory Guidelines in the 2021 unlawful reentry case but remained concerned 

about his past dangerous behavior. 2 R. 7, 16–17. For these reasons, it determined 

that a Guidelines-range, consecutive sentence in the revocation case was warranted. 

Id. 16. We can see no reason to challenge the district court’s exercise of its 

authority. See United States v. Contreras-Martinez, 409 F.3d 1236, 1241–42 (10th 

Cir. 2005). Thus, there is no perceivable basis for appeal. 

APPEAL DISMISSED. Counsel’s motion to withdraw is GRANTED. 

Entered for the Court 

Paul J. Kelly, Jr. 

Circuit Judge 

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