UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

ISRAEL NAVA-ORTEGA 

 Defendant - 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 Israel Nava-Ortega 

(“Defendant”) in May 2021 at a USBP checkpoint in Doña Ana County north of Las 

Cruces, New Mexico. Defendant subsequently pleaded guilty to one count of illegal 

reentry by a removed alien previously convicted of a felony, in violation of 8 U.S.C. 

§ 1326(a)(1)–(2), (b)(2). The district court sentenced Defendant to 46 months’ 

* 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 

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 This order and judgment is not binding precedent, 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 

May 27, 2022

Christopher M. Wolpert 

Clerk of Court

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imprisonment, followed by a two–year term of unsupervised release. Defendant timely 

appeals. We exercise jurisdiction 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). “We therefore base our conclusion in this case on 

counsel’s brief and our own careful review of the record.” United States v. VasquezReyes, 353 F. App’x 129, 131 (10th Cir. 2009) (unpublished). For the reasons stated 

below, we conclude that the record in this case does not provide a nonfrivolous basis 

for appeal. Accordingly, we grant counsel’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 determines that any appeal would 

be wholly frivolous.” United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005) 

(citing Anders, 386 U.S. at 744). This process 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 court. The [c]ourt must then conduct a 

full examination of the record to determine whether defendant’s claims 

are wholly frivolous. If the court concludes after such an examination that 

the appeal is frivolous, it may grant 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 reviewing any sentence, we “must 

first ensure that the district court committed no significant procedural error . . . . then 

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consider the substantive reasonableness 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 procedurally erred when sentencing Defendant. 

 As defendant’s counsel recognizes, defendant did not raise a procedural 

challenge during sentencing. Accordingly, we review for plain error. See United 

States v. Lopez-Flores, 444 F.3d 1218, 1221 (10th Cir. 2006). Plain error occurs where 

there is “(1) error, (2) that is plain, (3) which affects substantial rights, and (4) which 

seriously affects the fairness, integrity, or public reputation 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 any 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 Defendant’s sentence consistent with the 

presentence report (“PSR”). The PSR determined Defendant’s base offense level as 8 

under U.S.S.G. § 2L1.2(a). The PSR increased 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-level reduction for acceptance of responsibility 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 score was based on three criminal history points 

for a 2003 New Mexico aggravated burglary conviction, which resulted in a nine-year 

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prison sentence. U.S.S.G. § 4A1.1(a). The PSR also added 6 points due to Defendant’s 

two prior illegal reentry convictions in 2010 and 2014. Id. Defendant’s total criminal 

history score placed him in criminal history category IV. Accordingly, Defendant’s 

criminal history category of IV coupled with his total offense level, yielded a 

recommended sentencing range of 46–57 months. 

At his sentencing hearing, Defendant requested a sentencing variance to time 

served. The district court adopted the PSR’s factual findings, calculated the sentencing 

guidelines, and considered his variance request before sentencing Defendant to 46 

months’ imprisonment. Defendant 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 when imposing Defendant’s sentence. Additionally, the 

district court explained that it would impose a sentence within 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 sentence imposed by the district court is 

procedurally reasonable, and any challenge to it would be wholly frivolous. 

Next, we turn to the substantive reasonableness of the sentence. Substantive 

reasonableness is based on “whether the length of the sentence is reasonable given all 

the circumstances of the case in light of the 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)). 

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We have consistently held that if “the district court correctly determined the 

relevant Guidelines range, and if the defendant was subsequently sentenced . . . within 

that range, then the sentence is entitled to a rebuttable presumption 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 (10th Cir. 2008); Kristl, 473 F.3d at 1055). 

Defendant “may rebut this presumption 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 Defendant’s violation along 

with his traumatic childhood and imposed the shortest sentence within the guidelines. 

Because this sentence is within the guideline 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 challenge to the substantive reasonableness of 

Defendant’s sentence would be wholly frivolous. 

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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 

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