*

This order and judgment is not binding precedent except under the doctrines of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 16, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RAYMUNDO VALENZUELARAMIREZ,

Defendant - Appellant.

No. 07-2285

(D. Ct. No. 2:07-CR-01809-WJ-1)

(D. N. Mex.)

ORDER AND JUDGMENT*

Before TACHA, KELLY, and McCONNELL, Circuit Judges.

Defendant-Appellant Raymundo Valenzuela-Ramirez pleaded guilty to a onecount information charging him with illegally reentering the country after previously

being deported in violation of 8 U.S.C. § 1326(a)(1) and (2), and § 1326(b)(2). He was

sentenced to 41 months’ imprisonment. His attorney filed a timely notice of appeal,

followed by a brief and motion to withdraw pursuant to Anders v. California, 386 U.S.

738, 744 (1967). After reviewing the record, we agree that there are no meritorious issues

to raise on appeal. Accordingly, we GRANT the motion to withdraw and DISMISS Mr.
- 2 -

Valenzuela-Ramirez’s appeal.

I. BACKGROUND

On July 5, 2007, border patrol agents found Mr. Valenzuela-Ramirez, a citizen and

national of Mexico, in the United States where he freely admitted that he was illegally

present in the country. Subsequent criminal and immigration checks revealed that Mr.

Valenzuela-Ramirez had previously been deported after three convictions for transporting

illegal aliens. He was then charged with and pleaded guilty to one count of illegal

reentry under 8 U.S.C. § 1326(a)(1) and (2), and § 1326(b)(2).

The presentence report (“PSR”) determined the base offense level to be 8. See

U.S.S.G. § 2L1.2(a). The PSR recommended a sixteen-level enhancement because Mr.

Valenzuela-Ramirez had previously been deported after a conviction for an alien

smuggling offense. See § 2L1.2(b)(1)(A)(vii). After a three-level reduction for

acceptance of responsibility, see § 3E1.1(a) and (b), the PSR recommended a total offense

level of twenty-one. Mr. Valenzuela-Ramirez’s criminal history category was II, which

produced an advisory Guidelines range of forty-one to fifty-one months’ imprisonment. 

The district court sentenced him to forty-one months.

II. DISCUSSION

The district court found that Mr. Valenzuela-Ramirez’s guilty plea was made

freely, voluntarily, and intelligently. Mr. Valenzuela-Ramirez never sought to withdraw

his plea below, and there is no indication he wishes to challenge his plea on appeal. 

Nonetheless, we have reviewed the record, and we independently find no nonfrivolous
1

Under 8 U.S.C. § 1324(a)(1)(A)(ii), a person is guilty of alien smuggling when

“knowingly or in reckless disregard for the fact that an alien has . . . entered . . . the

United States in violation of law, transports . . . such alien within the United States . . . .” 

The defendant admitted to driving through Arizona with nine other men who proved to be

in the United States illegally. He also admitted to moving across the Mexican border with

them on foot, clearly establishing a reckless disregard for whether those men were in the

United States legally.

- 3 -

basis for Mr. Valenzuela-Ramirez to challenge his plea. Thus, we turn to whether Mr.

Valenzuela-Ramirez’s sentence is reasonable. See United States v. Kristl, 437 F.3d 1050,

1053 (10th Cir. 2006).

During sentencing, Mr. Valenzuela-Ramirez objected to the sixteen-level

enhancement under § 2L1.2(b)(1)(A)(vii), which applies when the defendant has

previously been deported after “a conviction for a felony that is . . . (vii) an alien

smuggling offense.” The commentary to the Guidelines states that an “alien smuggling

offense” includes all offenses listed in 8 U.S.C. § 1101(a)(43)(N). U.S.S.G. § 2L1.2 cmt.

n.1(B)(i). That statute, in turn, includes offenses under 8 U.S.C. § 1324(a)(1)(A) and

(a)(2) within its definition. 8 U.S.C. § 1101(a)(43)(N). Mr. Valenzuela-Ramirez pleaded

guilty in 1999 to three counts of alien smuggling in violation of § 1324(a)(1)(A)(ii). 

Morever, Mr. Valenzuela-Ramirez admitted to the elements of a § 1324(a) smuggling

offense at the sentencing hearing in this case.1

 Accordingly, the district court properly

enhanced Mr. Valenzuela-Ramirez’s offense level by sixteen. The district court also

properly determined the base offense level to be 8, see § 2L1.2(a), properly subtracted

three levels for acceptance of responsibility, see § 3E1.1(a) and (b), and properly

calculated his criminal history category. Thus, because the district court correctly
- 4 -

determined the applicable Guidelines range and sentenced Mr. Valenzuela-Ramirez

within that range, his sentence is presumptively reasonable on appeal. See United States

v. Haley, 529 F.3d 1308, 1311 (10th Cir. 2008).

Mr. Valenzuela-Ramirez may rebut this presumption by showing that the factors

listed in 18 U.S.C. § 3553(a) justify a lower sentence. See id. Our review of the record

demonstrates that the district court did not abuse its discretion in refusing to vary

downward. See id. (noting that “we generally defer to [a district court’s] decision to

grant, or not grant, a variance based upon its balancing of the § 3553(a) factors” and

review that decision for abuse of discretion). Mr. Valenzuela-Ramirez’s sentence is

reasonable.

III. CONCLUSION

As required by Anders, we have conducted a full examination of the record before

us. The record establishes no nonfrivolous basis for challenging either Mr. ValenzuelaRamirez’s guilty plea or his sentence. Accordingly, we GRANT counsel’s motion to

withdraw and DISMISS this appeal. 

ENTERED FOR THE COURT,

Deanell Reece Tacha

Circuit Judge