UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

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UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

v.

RODRIGO JAVIER DIAZ-DE LA CRUZ, 

a/k/a Jose T. Gonzalez, 

 Defendant - Appellant.

No. 23-5055

(D.C. No. 4:21-CR-00545-GKF-1)

(N.D. Okla.)

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ORDER AND JUDGMENT*

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Before BACHARACH, BALDOCK, and MORITZ, Circuit Judges.

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Rodrigo Javier Diaz-De la Cruz pleaded guilty to illegally reentering the 

United States after having been previously removed. See 18 U.S.C. § 1326. His

Pre-Sentence Investigation Report assessed an offense level of 15 and a criminal 

history category of II, yielding a guideline sentencing range of 21-27 months in 

prison. De la Cruz moved for both a downward departure and a downward variance. 

The district court denied a departure, granted a two-level downward variance, and 

* After examining the brief 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 

ordered 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

February 27, 2024

Christopher M. Wolpert

Clerk of Court

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sentenced De la Cruz to 18 months in prison. De la Cruz appealed, indicating he

intended to challenge the procedural and/or substantive reasonableness of his 

sentence. His counsel, however, filed a brief under Anders v. California, 386 U.S. 

738 (1967), contending there are no nonfrivolous issues to appeal and seeking 

permission to withdraw. Exercising jurisdiction under 28 U.S.C. § 1291 and 

18 U.S.C. § 3742, we grant counsel’s motion to withdraw and dismiss the appeal.

I

Anders permits “counsel to request permission to withdraw 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).

[C]ounsel must submit 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. (citations omitted). De la Cruz’s counsel filed an Anders brief and served it on 

both the government and De la Cruz. We notified De la Cruz of his opportunity to 

file a pro se response, but neither he nor the government responded. Based on our 

review, we agree with counsel that there are no nonfrivolous issues to appeal. 

II

Counsel identifies two potential issues relating to the procedural and 

substantive reasonableness of De la Cruz’s sentence. “[W]e review all sentences—

whether inside, just outside, or significantly outside the Guidelines range—under a 

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deferential abuse-of-discretion standard.” United States v. Gross, 44 F.4th 1298, 

1301 (10th Cir. 2022) (internal quotation marks omitted). “Our appellate review for 

reasonableness includes both a procedural component, encompassing the method by 

which a sentence was calculated, as well as a substantive component, which relates to 

the length of the resulting sentence.” United States v. Smart, 518 F.3d 800, 803 

(10th Cir. 2008). “While a case involving a departure (and thus the question of 

guidelines application) opens the door to a procedural reasonableness challenge, we 

review a variance for substantive reasonableness.” United States v. Kaspereit, 

994 F.3d 1202, 1214 (10th Cir. 2021).

Counsel first correctly points out that any procedural challenge to the 

discretionary denial of a downward departure would fall outside the scope of our 

jurisdiction. See United States v. Sierra-Castillo, 405 F.3d 932, 936 (10th Cir. 2005)

(“This court has no jurisdiction . . . to review a district court’s discretionary decision 

to deny a motion for downward departure on the ground that a defendant’s 

circumstances do not warrant the departure.”). 

“The only [jurisdictional] exception is if the denial [of a departure] is based on 

the district court’s interpretation of the Guidelines as depriving it of the legal 

authority to grant the departure.” United States v. Dawson, 90 F.4th 1286, 1292-93 

(10th Cir. 2024) (internal quotation marks omitted). That exception does not apply 

here. De la Cruz sought a departure under United States Sentencing Guidelines 

Manual § 2L1.2, cmt., appl. n.7 (U.S. Sentencing Comm’n), which permits a 

departure based on time served in state custody. “Such a departure should be 

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considered only in cases where the departure is not likely to increase the risk to the 

public from further crimes of the defendant.” Id. Among other things, “the court 

should consider . . . whether the defendant engaged in additional criminal activity 

after illegally reentering the United States [and] the seriousness of any such 

additional criminal activity.” Id. The district court considered these factors and 

determined that a departure was inappropriate because it was likely to increase the 

risk to the public from further crimes of De la Cruz. Further, the district court 

pointed out that, after illegally reentering the United States, De la Cruz committed a 

serious state offense—trafficking in heroin. Under these circumstances, the district 

court did not misunderstand its authority to grant or deny a departure.

Second, counsel correctly contends there are no nonfrivolous issues regarding 

the district court’s substantive decision to grant a downward variance. De la Cruz

conceded that the applicable guidelines range was 21-27 months in prison, but he 

requested a downward variance to time served because he had been in federal custody 

for over five months and in state custody for 26 months. He claimed a variance 

would avoid any sentencing disparity caused by his federal prosecution being delayed 

until after his state sentence was imposed, which he asserted deprived him of the 

opportunity to seek concurrent state and federal sentences. He also urged the district 

court to grant a variance on the grounds that he reentered the United States for 

economic reasons and the guidelines overrepresented his criminal history. 

The district court agreed De la Cruz’s circumstances warranted a slight 

downward variance, particularly because the guidelines overrepresented his criminal 

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history. The district court considered the sentencing factors set forth at 18 U.S.C. 

§ 3553(a) and reduced the applicable offense level by two, which yielded a guideline 

range of 15-21 months. The district court then sentenced De la Cruz to 18 months in 

prison. This is not an unreasonable sentence. See United States v. Sayad, 589 F.3d 

1110, 1116 (10th Cir. 2009) (“[A] . . . sentence is substantively unreasonable only if 

it is arbitrary, capricious, whimsical, or manifestly unreasonable.”). The district 

court carefully weighed the § 3553(a) factors, including the nature of De la Cruz’s 

unlawful-reentry offense, his criminal history, and his personal characteristics. The 

district court also explained that it sought to impose a sentence to provide adequate 

deterrence, promote respect for the law, provide a just punishment, and protect the 

public, mindful of sentencing disparities. Affording due deference to the district 

court’s decision that the § 3553(a) factors warranted the variance, any challenge to 

the substantive reasonableness of De la Cruz’s sentence would have been frivolous.

III

Based on our review of the record, we find no other arguably meritorious 

claims. Accordingly, we grant counsel’s motion to withdraw and dismiss this appeal.

Entered for the Court

Nancy L. Moritz

Circuit Judge

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