UNITED STATES COURT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff–Appellee,

v. JUAN MANUEL GAMEZ-TAPIA, Defendant–Appellant. No. 12-2050 (D.C. No. 2:11-CR-01825-WJ-1) (D.N.M.)

ORDER AND JUDGMENT *

Before LUCERO , O’BRIEN , and MATHESON , Circuit Judges.
Juan Manuel Gamez-Tapia appeals his se ntence of eight months’ imprisonment imposed following revocation of his supervis ed release. Gamez-Tapia’s counsel moves for leave to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we dismiss the appeal and grant counsel’s motion to withdraw. * After examining appellant’s brief and the appellate record, this panel has determined unanimously that oral argument wo uld not materially assi st the determination of this appeal. See Fed. R. App. P. 34(a )(2) and 10th Cir. R. 34 .1(G). The case is therefore ordered submitted without oral argu ment. This order and judgment is not binding precedent, except under the doctri nes of law of the case, res judicata, and collateral estoppel.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 

### November 5, 2012
Elisabeth A. Shumaker Clerk of Court– 2 – I On April 14, 2011, Gamez-Tapia was arre sted for illegally reentering the United States. Consequently, the government filed a petition to revoke Gamez-Tapia’s supervised release in a pr ior drug trafficking case. Following a plea colloquy, the district court accepted Gamez-Tapia’s guilty plea to vi olation of the terms of his supervised release. After calculating an advisory Guidelines range of eight to fourteen months’ imprisonment, the court imposed a sentence of eight months. Gamez-Tapia filed a timely notice of appeal.
II Counsel may seek leave to withdraw if, af ter conscientiously examining a case, he determines that an appeal w ould be wholly frivolous. Ande rs, 386 U.S. at 744. To withdraw properly, counsel must submit a br ief highlighting any potentially appealable issues and submit the brief to the defendant . Id. If upon careful examination of the record the court determines that the appeal is frivolous, it may grant the request to withdraw and dismiss the appeal. Id. In th is case, counsel sent a copy of the Anders brief to Gamez-Tapia, but Gamez-Ta pia has not filed a pro se brief. Counsel’s Anders brief first raises and dismisses the argument that Gamez-Tapia was deprived of his rights under Federal Ru le of Criminal Procedure 32.1(b)(2). Because Gamez-Tapia’s prior counsel did not make this objection below, we review for plain error. See United States v. Rausch, 6 38 F.3d 1296, 1299 (10t h Cir. 2011). “Plain error occurs when there is (1) error, (2) that is plain, which (3) affects [the defendant’s] substantial rights, and which (4) seriously affects the fairness, integrity, or public– 3 – reputation of judicial pro ceedings.” Id. at 1299-1300 . Rule 32.1(b)(2) entitles a defendant in a revocation hearing to: (a) wr itten notice of the alleged violation; (b) disclosure of the evidence agai nst him; (c) an opportunity to appear, present evidence, and question any adverse witness unless the court determines th at the interest of justice does not so require; (d) notice of his right to re tain counsel or to request that counsel be appointed if he cannot obtain counsel; and (e ) an opportunity to make a statement and present any information in mitigation. Fed. R. Crim. P. 32.1(b)(2). The record forecloses any non-frivolous argument that Gamez-Tapia was deprived of his rights under Rule 32.1( b)(2). Gamez-Tapia had notice of the petition to revoke his supervised release, which described the eviden ce against him. The district court afforded Gamez-Tapia the opportunity to appear, presen t evidence, and cross- examine witnesses. A full hearing was not require d because Gamez-Tapia knowin gly and voluntarily waived his right to a full hearing. Gamez-Tapia wa s represented by counsel, and exercised his right to address the court and have his counsel present mitigating information. Counsel’s brief next raises and dism isses the argument that Gamez-Tapia’s advisory Guidelines range wa s improperly calculated. Wh en reviewing the district court’s application of the Guidelines, “we re view legal questions de novo and factual findings for clear error, giving due deference to the district court’s application of the guidelines to the facts.” United States v. Munoz-Tello, 531 F.3d 1174, 1181 (10th Cir. 2008) (quotation omitted). However, when a defe ndant fails to timely object, we review for plain error. See United States v. Poe, 556 F.3d 1113, 1127-28 (10th Cir. 2009).– 4 – The record does not permit a non-frivolous ar gument of plain error. The district court correctly determined that Gamez-Tapi a’s supervised release violation for illegal reentry has the most serious grade under U.S. S.G. § 7B1.1(b), and correctly determined that this was a Grade B violation. See § 7B1.1(a)(2). And because Gamez-Tapia had a criminal history category of III, his Guidelines range was properly calculated at eight to fourteen months under § 7B1.4. Counsel’s brief next raises and dism isses the argument that Gamez-Tapia’s sentence is substantively unreasonable. We review for abuse of discretion. Gall v. United States, 552 U.S. 38, 51 ( 2007). This review assesses 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).” United States v. Reyes-Al fonso, 653 F.3d 1137, 1145 (10th Cir. 2011). Because the district cour t imposed a sentence properly within the Guidelines range, we presume it is s ubstantively reasonable. See id. Counsel properly concluded that it would be frivolous to argue that a low-end sentence of eight months is unreasonable in light of the other § 3553(a) factors. The district court noted Gamez-Tapia’s criminal history and that he had been granted voluntary departure to Mexico on multiple occasions. The dist rict court thus reasonably held that a sentence within the Guidelines range was necessary to deter Gamez-Tapia from further illegal reentries. Finally, counsel’s brief raises and dism isses the argument that Gamez-Tapia’s sentence is procedurally unr easonable because the district court failed to adequately explain its reasons for the sentence under 18 U.S.C. § 3553(c). Because Gamez-Tapia– 5 – did not raise this argument below, we review for plain error. See United States v. RuizTerrazas, 477 F.3d 1196, 1199 (10th Cir. 2007). Some cases, including those where a judge imposes a sentence w ithin the applicable Guid elines range, require little explanation. See Rita v. United States, 551 U.S. 338, 356 (2007) (holding that the court adequately explained its reasons under § 3553(c) with respect to the factors set forth in § 3553(a) where the court gave “brief” re asons in response to “straightforward” arguments). The district court explained th at the sentence was within the Guideline range, and was sufficient but not greater than necessary to satis fy the goals of sentencing. Even assuming the stated reasons were insu fficient under § 3553(c), Gamez-Tapia cannot establish that the district court’s failure to elaborate on its reasoning impacted the outcome of his sentencing and therefore affect ed his substantial rights, as required to show plain error. See Ruiz-Terrazas, 477 F.3d at 1203.
III Because we are not presented with an y meritorious grounds for appeal, we GRANT counsel’s request to withdraw and DISMISS the appeal. Entered for the Court

Carlos F. Lucero Circuit Judge