UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

ESPIRIDION DELEON-VICTORINO, 

 Defendant - Appellant. 

No. 13-6175 

(D.C. No. 5:13-CR-00068-F-1) 

(W.D. Okla.)

 

ORDER AND JUDGMENT*

 

Before GORSUCH, O’BRIEN, and PHILLIPS, Circuit Judges. 

 

 Espiridion Deleon-Victorino pleaded guilty to unlawful reentry of a removed 

alien subsequent to an aggravated felony conviction. The district court sentenced 

him to 60 months in prison, which was toward the low end of the applicable 57-to-71 

month guideline range, and Mr. Deleon-Victorino appealed. His attorney has since 

filed an Anders brief and moved to withdraw, asserting there are no non-frivolous 

issues for appeal. See Anders v. California, 386 U.S. 738 (1967). This court twice 

 

* After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist 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. 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

October 7, 2014

Elisabeth A. Shumaker 

Clerk of Court
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notified Mr. Deleon-Victorino of his opportunity to file a pro se brief, but he has not 

responded and the time to do so has passed. We have independently reviewed the 

record and agree with counsel’s assessment. Accordingly, exercising jurisdiction 

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we grant the motion to withdraw 

and dismiss the appeal. 

 Under Anders, defense counsel may move to withdraw if, after conscientiously 

examining the case, counsel determines that an appeal would be “wholly frivolous.” 

386 U.S. at 744. “[C]ounsel must submit a brief to the client and the appellate court 

indicating any potential appealable issues based on the record.” United States v. 

Calderon, 428 F.3d 928, 930 (10th Cir. 2005). The client may also file a pro se 

response. Anders, 386 U.S. at 744. We then independently examine the record to 

determine “whether the case is wholly frivolous.” Id. If we agree with counsel’s 

assessment, we grant the motion to withdraw and dismiss the appeal. Id.

 Mr. Deleon-Victorino’s attorney has identified several potential issues 

challenging the procedural and substantive reasonableness of his sentence. First, she 

notes that the pre-sentence investigation report (PSR) separately assessed criminal 

history points for two prior sentences that resulted from a single arrest. She 

concedes, however, that this issue is frivolous because USSG § 4A1.2(a)(2) expressly 

states, “If there is no intervening arrest, prior sentences are counted separately unless 

(A) the sentences resulted from offenses contained in the same charging instrument; 

or (B) the sentences were imposed on the same day.” There was no intervening arrest 
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here and neither exception applies. Mr. Deleon-Victorino was sentenced in federal 

court on January 21, 2003, for the offense of illegal reentry, and he was separately 

sentenced in a Texas state court on February 14, 2003, for the offense of tampering 

with a government record. See R., Vol. 2 at 19 (PSR para. 49-50). The PSR 

correctly assessed separate criminal history points for each sentence. 

Counsel also submits that the district court’s statement of reasons for the 

sentence imposed was not sufficiently detailed. Yet she recognizes that “[w]here a 

district court imposes a sentence falling within the range suggested by the 

Guidelines, Section 3553(c) requires the court to provide only a general statement of 

the reasons for its imposition of the particular sentence.” United States v. Chavez, 

723 F.3d 1226, 1232 (10th Cir. 2013) (internal quotation marks omitted). At 

sentencing, the district court heard counsel’s arguments, explained why he chose a 

sentence within the 57-to-71 month guideline range without a departure or variance, 

and imposed a sentence of 60 months, taking into account all of the factors of 

18 U.S.C. § 3553(a). We agree with counsel that the district court’s explanation was 

legally adequate. 

 Additionally, counsel posits that the sentence is substantively unreasonable 

because Mr. Deleon-Victorino’s base offense level was increased by sixteen levels 

pursuant to USSG § 2L1.2(b)(1)(A)(vii) because he was previously removed after an 

alien smuggling offense. Although a sentence within a correctly calculated guideline 

range is presumptively reasonable, see Chavez, 723 F.3d at 1233, counsel suggests 
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that § 2L1.2 places unfair emphasis on a defendant’s criminal history and lacks 

empirical support for any sentencing objective. She acknowledges, however, that we 

have squarely rejected this argument. See United States v. Alvarez-Bernabe, 

626 F.3d 1161, 1166 (10th Cir. 2010). Counsel also offers various mitigating 

circumstances that might have justified a lesser sentence, only some of which were 

presented to the district court, though none demonstrate that the sentence imposed 

was substantively unreasonable. See United States v. McComb, 519 F.3d 1049, 1053 

(10th Cir. 2007) (“[T]here will be a range of possible outcomes the facts and law at 

issue can fairly support.”). 

 Mr. Deleon-Victorino has failed to offer any non-frivolous issues and our 

independent review confirms there are none. Accordingly, we grant defense 

counsel’s motion to withdraw and dismiss this appeal. 

 Entered for the Court 

 Gregory A. Phillips 

 Circuit Judge