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 Paya n-Carrillo challenges the district court’s imposition of an 18-month cons ecutive sentence for violation of his conditions of supervised release. That sentence runs consecutive to a 24-month sentence imposed for his 2021 unlawful reen try. 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 unlawfu l reentry sentence as that sentence was

* This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

** After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially 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 Appellate Case: 22-2072 Document: 010110804180 Date Filed: 01/26/2023 Page: 12 imposed pursuant to a fast-tra ck plea agreement with an app eal waiver. Anders Br. at 1; 2 R. 15. Mr. Payan-Carri llo’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. Pa yan-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 revocati on matter and sentencing in the 2021 reentry case. At the hearing, the court found Mr . Payan-Carrillo voluntar ily 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 p unitive sentences based on inco rrect treatment of a past marijuana charge as an a ggravated felony but was also concerned about his past dangerous behavior associ ated with prior convic tions. Id. 10–12, 16–17.

Discussion Under Anders, counsel may request perm ission 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). Af ter counsel submits a brief Appellate Case: 22-2072 Document: 010110804180 Date Filed: 01/26/2023 Page: 23 describing any potential appealab le issues to the court and to her client, the defendant may then file a response cont aining his own arguments. Id. Despite being notified of his entitlement and granted additional time to do so, Mr. Payan-Carri llo did not file a response to counsel’s Anders brief. The government also de clined 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 di scretion in running the revocat ion 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 Ci r. 2012). We would generally review a sentence’s substantive reasonableness fo r abuse of discretion, but a sentence imposed after revo cation of supervised releas e is generally upheld unless “plainly unreasonable.” Gall v. United Stat es, 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 revi ewed the violation report and the sentencing factors applicable to superv ised 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 violati on of his supervised release, and, with a Appellate Case: 22-2072 Document: 010110804180 Date Filed: 01/26/2023 Page: 34 criminal history category of IV, Mr. Paya n-Carrillo’s Guidelines range was 12 to 18 months. U.S.S.G. § 7B1.4(a). The cour t thus correctly calculated the advisory Guidelines range and sentenced Mr. Paya n-Carrillo within it. See 2 R. 16. Therefore, the sentence is en titled to a presumption of re asonableness. See Rita v. United States, 551 U.S. 338, 347 (2007); Un ited States v. Leon hardt, 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 exer cise of its discretion in imposing a Guidelines-range

sentence.
B. The decision to order th e sentences consecutively We would also review the decision to or der consecutive sentences for abuse of discretion. Rodriguez-Quin tanilla, 442 F.3d at 1256. And, as earlier stated, a sentence imposed after revocation of superv ised 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 cour t’s discretion to order se ntences consecutively or concurrently is informed by applicable policy statemen ts of the United States Sentencing Commission. Id. Relevant he re, U.S.S.G. § 7B1. 3(f) states that [a]ny term of imprisonment impose d upon the revocati on of probation or supervised release sh all be ordered to be se rved consecutively to any sentence of imprisonment that the defe ndant 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. Appellate Case: 22-2072 Document: 010110804180 Date Filed: 01/26/2023 Page: 45 18 U.S.C. § 7B1.3(f). The defendant carri es the burden to demo nstrate why ordering consecutive sentences would be an abuse of discretion. Rodriguez-Quintanilla, 442 F.3d at 1256. According to the record, after indicating its concer ns and considering both parties’ arguments, the distri ct court explained its rationa le for ordering the sentences successively. The district court had senten ced Mr. Payan-Carrillo to the low end of the advisory Guidelines in the 2021 unlaw ful reentry case but remained concerned about his past dangerous beha vior. 2 R. 7, 16–17. For these reasons, it determined that a Guidelines-range, consecutive senten ce in the revocation cas e was warranted. Id. 16. We can see no reason to challenge the district court’ s exercise of its authority. See United States v. Contre ras-Martinez, 409 F. 3d 1236, 1241–42 (10th Cir. 2005). Thus, there is no perceivable basis for appeal. APPEAL DISMISSED. Counsel’s mo tion to withdraw is GRANTED.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge Appellate Case: 22-2072 Document: 010110804180 Date Filed: 01/26/2023 Page: 5