UNITED STATES CO URT 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-Victori no pleaded guilty to unlawfu l reentry of a removed alien subsequent to an aggr avated felony conviction. Th e district court sentenced him to 60 months in prison, which was towa rd 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, as serting 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 pane l has determined unanimously that oral argument would not mate rially assist the de termination 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve 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- 2 - notified Mr. Deleon-Victorino of his opportunity to file a pr o se brief, but he has not responded and the time to do so has passed . We have independently reviewed the record and agree with couns el’s assessment. Accordin gly, exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 374 2(a), we grant the motion to withdraw and dismiss the appeal. Under Anders , defense counsel may move to w ithdraw if, after conscientiously examining the case, counsel de termines that an appeal w ould be “wholly frivolous.” 386 U.S. at 744. “[C]ounsel must submit a brief to the cl ient 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 i ndependently examin e the record to determine “whether the cas e is wholly frivolous.” Id. If we agree with counsel’s assessment, we grant the motion to withdraw and dism iss 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 re port (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 U SSG § 4A1.2(a)(2) expressly states, “If there is no interv ening arrest, prior sentences are counted separately unless (A) the sentences resulted from offenses co ntained in the same charging instrument; or (B) the sentences were im posed on the same day.” There was no intervening arrest- 3 - here and neither exception applies. Mr. Deleon-Victorino was sentenced in federal court on January 21, 2003, for the offense of illegal reentry, a nd he was separately sentenced in a Texas state c ourt on February 14, 2003, fo r 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 detail ed. Yet she recognizes that “[w]here a district court imposes a sentence fall ing within the range suggested by the Guidelines, Section 3553(c) requires the c ourt 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 Ci r. 2013) (internal quotati on marks omitted). At sentencing, the district c ourt 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, taki ng into account all of the factors of 18 U.S.C. § 3553(a). We agre e with counsel that the dist rict court’s explanation was legally adequate. Additionally, counsel posits that th e sentence is substa ntively unreasonable because Mr. Deleon-Victorino’s base offens e level was increased by sixteen levels pursuant to USSG § 2L1.2(b)(1)(A)(vii) becau se he was previously removed after an alien smuggling offense. Although a senten ce within a correctly calculated guideline range is presumptively reasonable, see Chavez , 723 F.3d at 1233, counsel suggests- 4 - that § 2L1.2 places unfair emphasis on a de fendant’s criminal history and lacks empirical support for any sentencing objectiv e. She acknowledges, however, that we have squarely reject ed this argument. See United States v. Alvarez-Bernabe , 626 F.3d 1161, 1166 (10th Ci r. 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 n one demonstrate that the sentence imposed was substantively unreasonable. See United States v. McComb , 519 F.3d 1049, 1053 (10th Cir. 2007) (“[T]here wi ll 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