UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

EDWARDO CARRASCO-ORTIZ, 

 Defendant - Appellant. 

No. 15-2174 

(D.C. No. 2:14-CR-03820-RB-1) 

(D. N.M.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges. 

_________________________________ 

Edwardo Carrasco-Ortiz pled guilty to unlawful re-entry and received a sentence 

of 57 months’ imprisonment. His counsel moves for leave to withdraw in a brief filed 

pursuant to Anders v. California, 386 U.S. 738 (1967). Exercising jurisdiction under 28 

U.S.C. § 1291 and 18 U.S.C. § 3742(a), we dismiss the appeal and grant counsel’s 

motion to withdraw. 

Carrasco-Ortiz was deported from the United States on July 31, 2014, after 

serving a sentence for Re-entry After Deportation. He was arrested again on August 

 *

 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 

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 

May 11, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

17, 2014, in New Mexico and again charged under 8 U.S.C. § 1326, Re-entry of 

Removed Aliens. Carrasco-Ortiz pled guilty without a plea agreement. Because he 

was previously convicted of attempted second degree murder in New York, the 

Presentence Investigation Report (“PSR”) calculated a sixteen-level enhancement 

under U.S.S.G. § 2L1.2(b)(1)(A), which resulted in a Guidelines range of 57 to 71 

months’ imprisonment. Carrasco-Ortiz requested a downward variance to 24 months. 

However, the district court concluded that Carrasco-Ortiz had “been appropriately 

awarded a 16-level increase” for his prior attempted murder conviction, and that any 

downward variance would not “promote respect for the law” because of his multiple 

re-entry convictions and the need to deter him from again re-entering the United 

States. The court further noted that Carrasco-Ortiz did not make “any argument that 

[his New York conviction was for] anything other than a very violent felony.” The 

court thus adopted the PSR calculation and sentenced Carrasco-Ortiz to a withinGuidelines term of 57 months’ imprisonment. He timely appealed. 

On appeal, Carrasco-Oritz’s appointed counsel filed an Anders brief. When an 

attorney conscientiously examines a case and determines that an appeal would be 

frivolous, counsel must submit a brief advising the court and requesting permission 

to withdraw. Anders, 386 U.S. at 744. The defendant may then submit a pro se brief, 

id., as Carrasco-Ortiz did. If, after review, the court determines the appeal is 

frivolous, it may grant the request to withdraw and dismiss the appeal. Id. However, 

if the court finds any “legal points arguable on their merits (and therefore not 
3 

frivolous) it must . . . afford the indigent the assistance of counsel to argue the 

appeal.” Id. 

Counsel identifies the classification of Carrasco-Ortiz’s attempted murder 

conviction as a crime of violence as a potentially appealable issue.1

 However, 

counsel notes that because Carrasco-Ortiz did not raise the issue in the district court, 

any review would be for plain error. See United States v. Pablo, 696 F.3d 1280, 1287 

(10th Cir. 2012). Even assuming legal error, counsel argues that such a mistake 

would not be “plain” under our jurisprudence. “An error is plain if it is clear or 

obvious under current, well-settled law. In general, for an error to be contrary to 

well-settled law, either the Supreme Court or this court must have addressed the 

issue.” United States v. DeChristopher, 695 F.3d 1082, 1091 (10th Cir. 2012). 

 1

 Although counsel raises two other issues to consider, Carrasco-Ortiz 

concedes that any other claim would be frivolous. However, we also note counsel’s 

argument below, which he omits from his Anders brief. In his sentencing 

memorandum, counsel argued that the § 3553(a) factors required a below-Guidelines 

sentence “based on the excessive and unwarranted severity of the Sentencing 

Guideline itself.” This argument constitutes another potentially appealable issue, 

particularly because a district court may deviate from the Guidelines “based on 

policy disagreements with them,” United States v. Lopez-Macias, 661 F.3d 485, 490 

(10th Cir. 2011). The district court observed that “the 16-level enhancement does 

create some disproportionately severe sentences” and the court noted its “great 

trepidation” in applying the enhancement. The district court clearly harbored some 

policy disagreement with the enhancement. But discretion to vary the sentence does 

not overcome our previous holdings that the enhancement is not presumptively or 

inherently unreasonable. See, e.g., United States v. Avalos-Estrada, 520 F. App’x 

652, 655 (10th Cir. 2013) (unpublished) (collecting cases rejecting substantive 

unreasonableness arguments). Thus, while it is within the power of the district court 

to vary from a properly calculated Guideline, an argument that the district court acted 

outside of its discretion by imposing this within-Guidelines sentence would be 

wholly frivolous. 
4 

We have not uncovered any rulings from this court or the Supreme Court 

determining whether a New York state conviction for attempted second degree 

murder qualifies as a crime of violence. Further, rulings from other courts suggest 

the conviction qualifies. See, e.g., United States v. Godoy-Castaneda, 614 F. App’x. 

768, 772 (5th Cir. 2015) (unpublished) (holding that the first subsection of New 

York’s second degree murder statute “is within the generic, contemporary meaning of 

murder” and thus qualifies as a crime of violence for purposes of § 2L1.2(b)(1) 

(A)(ii)).2

 Given the absence of controlling authority—and the presence of persuasive 

authority to the contrary—we agree with counsel that any argument that the district 

court committed plain error in classifying the attempted second degree murder 

conviction as a crime of violence would be wholly frivolous. 

Because our record review does not reveal any non-frivolous grounds for 

appeal, we GRANT counsel’s motion to withdraw and DISMISS the appeal. 

Entered for the Court 

Carlos F. Lucero 

Circuit Judge 

 2

 The record is not definitive as to which subsection of the second degree 

murder statute formed the basis of Carrasco-Ortiz’s previous conviction. However, 

the “Certificate of Disposition Indictment” suggests that he was convicted under 

subsection one. The court considered the same uncertainty, and made the same 

inference in Godoy-Castaneda, 614 F. App’x. at 773.