UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

UNITED STATES OF AMERICA,

 Plaintiff–Appellee,

v.

SILVESTRE TERRAZAS-VILLA,

Defendant–Appellant.

No. 09-2009

(D.C. No. 1:08-CR-01622-WJ-1)

(D. N.M.)

ORDER AND JUDGMENT*

Before LUCERO, McKAY, and MURPHY, Circuit Judges. 

 

Silvestre Terrazas-Villa appeals his sentence of forty-one months’ imprisonment 

for re-entering the United States following deportation in violation of 8 U.S.C. § 1326. 

In a brief filed pursuant to Anders v. California, 386 U.S. 738 (1967), Terrazas-Villa’s 

counsel asserts that there are no nonfrivolous arguments for presentation on appeal and 

moves for leave to withdraw. Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 

 

* The case is unanimously ordered submitted without oral argument pursuant to 

Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not 

binding precedent, except under the doctrines of law of the case, res judicata, and 

collateral estoppel. The court generally disfavors the citation of orders and judgments; 

nevertheless, an order and judgment may be cited under the terms and conditions of 10th 

Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

October 27, 2009

Elisabeth A. Shumaker 

Clerk of Court
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U.S.C. § 1291, we affirm Terrazas-Villa’s sentence and grant counsel’s motion to 

withdraw. 

I 

 Terrazas-Villa is an undocumented immigrant who resided in Albuquerque, New 

Mexico. He has a history of illegal entry: Terrazas-Villa was first removed from the 

United States in 2005. Despite this removal, he re-entered the country. In 2007, he was 

convicted of illegal re-entry, along with several drug-related crimes. After serving his 

sentence for these crimes, he was deported to Mexico. 

Shortly thereafter, Terrazas-Villa again entered the United States without 

authorization and was quickly re-apprehended. He claims that he re-entered to help his 

wife and daughter move from Albuquerque to Mexico, because both suffer from serious 

medical conditions. Without entering into a plea bargain, Terrazas-Villa pled guilty to 

re-entering the United States following deportation.

 Terrazas-Villa’s probation officer then prepared a pre-sentence report (“PSR”) for 

the court. The PSR calculated a suggested offense level of twenty-one and a criminal 

history category of IV. The resulting Federal Sentencing Guidelines range was fiftyseven to seventy-one months’ imprisonment. Terrazas-Villa did not object to the PSR’s 

factual findings. He petitioned the court, however, for a departure from the Guidelines 

based on his family ties, family responsibilities, and his belief that his criminal history 

category was “significantly over-represented.” Terrazas-Villa also requested a variance 

based on his family ties and responsibilities. The district court declined to grant a 
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departure, but granted a downward variance based on Terrazas-Villa’s family ties and his 

daughter’s medical condition. Terrazas-Villa ultimately received a sentence sixteen 

months below the bottom of his Guidelines range.

II 

 Under Anders, if an attorney examines a case and determines that any appeal 

would be “wholly frivolous,” counsel may “so advise the court and request permission to 

withdraw.” 386 U.S. at 744. Counsel must submit a brief to both the appellate court and 

the client, pointing to anything in the record that could potentially present an appealable 

issue. Id. The client may then choose to offer argument to the court. Id. If, upon close 

examination of the record, the court determines that the appeal is frivolous, it may grant 

counsel’s request to withdraw and dismiss the appeal. Id. Counsel in the present case 

served Terrazas-Villa with a copy of the appellate brief; Terrazas-Villa did not file a 

response. 

The only arguably appealable issue raised in defense counsel’s brief, and the only 

appealable issue we discern in the record, is the reasonableness of Terrazas-Villa’s 

sentence. We review a district court’s sentencing determination for abuse of discretion. 

Gall v. United States, 128 S. Ct. 586, 597 (2007). A sentencing court abuses its 

discretion if it imposes a sentence that is procedurally or substantively unreasonable in 

light of the factors found in 18 U.S.C. § 3553(a). United States v. Geiner, 498 F.3d 1104, 

1107 (10th Cir. 2007). Examples of procedural unreasonableness include “failing to 

calculate (or improperly calculating) the Guidelines range, treating the Guidelines as 
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mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly 

erroneous facts, or failing to adequately explain the chosen sentence—including an 

explanation for any deviation from the Guidelines range.” Gall, 128 S. Ct. at 597. When 

a defendant does not contemporaneously object to the procedure used, we correct only 

plain error. United States v. Romero, 491 F.3d 1173, 1177 (10th Cir. 2007). If a district 

court did not make a significant procedural error, we then determine the substantive 

reasonableness by looking to the totality of the circumstances. Gall, 128 S. Ct. at 597. 

Sentences falling outside of the recommended Guidelines range, however, are not 

presumptively unreasonable. Id. 

The district court did not commit plain error in arriving at Terrazas-Villa’s 

sentence. It correctly calculated his sentence according to the Guidelines. Given that the 

court departed from them, it clearly did not regard the Guidelines as mandatory. 

Moreover, Terrazas-Villa does not contend that the court based its determination on 

erroneous facts. 

The district court also provided a detailed explanation of its reasons for imposing 

the forty-one month sentence, and its explanation took the § 3553(a) factors into 

consideration. First, the court considered the hardship that prolonged imprisonment 

would cause to Terrazas-Villa’s family. Noting that departure for family reasons is rare, 

the court made a factual determination that the hardship in Terrazas-Villa’s case was not 

extraordinary; thus, no departure was warranted. Second, the court observed that several 

§ 3553(a) factors weighed against granting a variance, including the need for the sentence 
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imposed “to reflect the seriousness of the offense, to promote respect for the law, to 

provide just punishment for the offense, to afford adequate deterrence to criminal 

conduct, and to protect the public from further crimes of the defendant.” However, it 

determined that Terrazas-Villa’s family ties and responsibilities outweighed these 

concerns and that a sentence of forty-one months was sufficient to comply with the 

purposes set forth in § 3553(a)(2). 

Under the totality of the circumstances, the sentence is not substantively 

unreasonable. Terrazas-Villa previously entered the United States illegally and 

committed drug crimes. Nevertheless, the court provided a sixteen month downward 

variance so that he could better care for his ill daughter. In sum, this sentence is not 

unduly harsh. 

III

 For the foregoing reasons, we AFFIRM Terrazas-Villa’s sentence and GRANT 

defense counsel’s motion to withdraw. 

 ENTERED FOR THE COURT 

Carlos F. Lucero 

 Circuit Judge