UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. ISRAEL NAVA-ORTEGA Defendan t - Appellant. No. 21-2153 (D.C. No. 2:21-CR -00940-MIS-1) (D.N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BACHARACH , BALDOCK , and McHUGH , Circuit Judges.

________________ _________________ United States Border Patrol (“USBP”) agents arrested Is rael Nava-Ortega (“Defendant”) in May 2021 at a USBP chec kpoint in Doña Ana County north of Las Cruces, New Mexico. Defendant subsequently pleaded guilty to one count of illegal reentry by a removed alien prev iously convicted of a felony, in violation of 8 U.S.C. § 1326(a)(1)–(2), (b)(2). Th e district court sentenced Defendant to 46 months’

* After examining the briefs and appella te 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); 10t h Cir. R. 34.1(G). Th e case is therefore submitted without oral argument. This orde r and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and colla teral estoppel. It may be cited, however, for its persuasive value consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### May 27, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-2153 Document: 010110690006 Date Filed: 05/27/2022 Page: 12 imprisonment, followed by a two–year term of unsupervised release. Defendant timely appeals. We exercise juri sdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291. Defendant’s counsel filed an Anders brief and a motion to withdraw as counsel to which neither Defendant nor the government responded. See generally Anders v. California , 386 U.S. 738 (1967). “W e therefore base our conc lusion in this case on counsel’s brief and our own caref ul review of the record.” United States v. VasquezReyes , 353 F. App’x 129, 131 (10t h Cir. 2009) (unpublished). For the reasons stated below, we conclude that the record in this case does not provi de a nonfrivolous basis for appeal. Accordingly, we grant c ounsel’s motion to withdraw and dismiss Defendant’s appeal. Under Anders , “counsel [may] request permission to withdraw [from an appeal] where counsel conscientiously examines a case and determin es that any appeal would be wholly frivolous.” United States v. Calderon , 428 F.3d 928, 93 0 (10th Cir. 2005) (citing Anders , 386 U.S. at 744). This pro cess requires counsel to: [S]ubmit 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 cour t. The [c]ourt must then conduct a full examination of the record to de termine whether defendant’s claims are wholly frivolous. If the court concl udes after such an examination that the appeal is frivolous, it may gran t counsel’s motion to withdraw and may dismiss the appeal. Id . (citing Anders , 386 U.S. at 744) (internal citations omitted). Counsel’s Anders brief raises only issues of procedural and substantive reasonableness as to Defendant ’s sentencing. When review ing any sentence, we “must first ensure that the district court committed no signifi cant procedural error . . . . then Appellate Case: 21-2153 Document: 010110690006 Date Filed: 05/27/2022 Page: 23 consider the substantive re asonableness of the sentence imposed under an abuse-ofdiscretion standard.” Gall v. United States , 552 U.S. 38, 51 (2007). Thus, we will first address whether the district court proce durally erred when sentencing Defendant. As defendant’s counsel recognizes, defendant did not raise a procedural challenge during sentencing. Accordi ngly, we review for plain error. See United States v. Lopez-Flores , 444 F.3d 1218, 1221 (10th Cir. 200 6). Plain error occurs where there is “(1) error, (2) that is plain, (3) which affects substantia l rights, and (4) which seriously affects the fairness, integrity, or public reputati on of judicial proceedings.” United States v. Romero , 491 F.3d 1173, 1178 ( 10th Cir. 2007) (citing Lopez-Flores , 444 F.3d at 1222). When reviewing a sentence for procedural error, we look to see “whether the sentencing court committed a ny error in calculating or explaining the
sentence.” United States v. Alapizco-Valenzuela , 546 F.3d 1208, 1214 (10th Cir. 2008). Here, the district court calculated Defe ndant’s sentence consistent with the presentence report (“PSR”). The PSR determin ed Defendant’s base offense level as 8 under U.S.S.G. § 2L1.2(a). The PSR increas ed Defendant’s base offense level by 14 levels to an adjusted offense level of 22. See id . § 2L1.2(b)(1)(A), (3)(A). Defendant then received a three-leve l reduction for acceptance of re sponsibility of the offense under U.S.S.G. § 3E1.1(a)–(b) . Thus, the PSR determined Defendant’s total offense level was 19. The PSR considered Defendant’s previous criminal convictions and calculated his criminal history score as 9. This scor e was based on three crim inal history points for a 2003 New Mexico aggravated burglary c onviction, which resulted in a nine-year Appellate Case: 21-2153 Document: 010110690006 Date Filed: 05/27/2022 Page: 34 prison sentence. U.S.S.G. § 4A 1.1(a). The PSR also added 6 points due to Defendant’s two prior illegal reentry convi ctions in 2010 and 2014. Id . Defendant’s total criminal history score placed him in criminal histor y category IV. Accord ingly, Defendant’s criminal history category of IV coupled with his total offense level, yielded a recommended sentencing ra nge of 46–57 months. At his sentencing hearing, Defendant re quested a sentencing variance to time served. The district court a dopted the PSR’s factual finding s, calculated the sentencing guidelines, and considered his variance reque st before sentencing Defendant to 46 months’ imprisonment. Defenda nt did not object to either the PSR or his sentence. The district court used the correctly calculated PSR and considered the 18 U.S.C. § 3553(a) factors wh en imposing Defendant’s se ntence. Additionally, the district court explained that it would impose a sentence w ithin the guideline range as defendant’s request for a variance to time served was not compelling. After careful review of the record, we conclude that the district court committed no error when sentencing Defendant. As such, the sent ence imposed by the district court is procedurally reasonable, a nd any challenge to it woul d be wholly frivolous. Next, we turn to the substantive reasona bleness of the sentence. Substantive reasonableness is based on “whe ther the length of the sent ence is reasonable given all the circumstances of the case in light of th e factors set forth in 18 U.S.C. § 3553(a).” Alapizco-Valenzuela , 546 F.3d at 1215 (quoting United States v. Conlan , 500 F.3d 1167, 1169 (10th Cir. 2007)). Appellate Case: 21-2153 Document: 010110690006 Date Filed: 05/27/2022 Page: 45 We have consistently held that if “the district court corr ectly determined the relevant Guidelines range, and if the defendant was subsequently sentenced . . . within that range, then the sentence is entitled to a rebuttable pr esumption of reasonableness on appeal.” United States v. Kristl , 437 F.3d 1050, 1054 (10th Cir. 2006). Because the district court sentenced Defendant within the statutorily permitted range, and within the relevant Guidelines range, we presume the sentence to be substantively reasonable.
See Alapizco-Valenzuela , 546 F.3d at 1215 (citing United States v. Sells , 541 F.3d 1227, 1237 (10t h Cir. 2008); Kristl , 473 F.3d at 1055). Defendant “may rebut this presumpti on by showing that his sentence is unreasonable in light of the sentencing factors delineated in [§ 3553(a)].” Id . The district court considered the nature and circumstances of Defe ndant’s violation along with his traumatic childhood an d imposed the shortest sent ence within the guidelines. Because this sentence is within the guidelin e range, and the court utilized its discretion in favor of Defendant, we see nothing in the record that constitutes an abuse-ofdiscretion. As such, the presumption of reasonableness to his sentence remains. Accordingly, we conclude that any challe nge to the substantive reasonableness of Defendant’s sentence woul d be wholly frivolous. Appellate Case: 21-2153 Document: 010110690006 Date Filed: 05/27/2022 Page: 56 For the reasons stated herein, counsel’s motion to withdraw is GRANTED and this appeal is DISMISSED.

Entered for the Court
Bobby R. Baldock Circuit Judge Appellate Case: 21-2153 Document: 010110690006 Date Filed: 05/27/2022 Page: 6