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 unla wful re-entry and received a sentence of 57 months’ imprisonment. His counsel m oves for leave to withdraw in a brief filed pursuant to Anders v. Califor nia, 386 U.S. 738 (1967). Ex ercising 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 Unit ed States on July 31, 2014, after serving a sentence for Re-entry After Depor tation. He was arre sted again on August

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve 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 Court2 17, 2014, in New Mexico and again char ged under 8 U.S.C. § 1326, Re-entry of Removed Aliens. Carrasco-Orti z 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 re sulted in a Guidelines range of 57 to 71 months’ imprisonment. Carrasco-Ortiz reque sted a downward variance to 24 months. However, the district cour t concluded that Carrasco-Or tiz had “been appropriately awarded a 16-level increase” for his prior a ttempted 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 de ter him from again re-entering the United States. The court further noted that Carra sco-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 a nd sentenced Carrasco-Ortiz to a withinGuidelines term of 57 months’ impr isonment. He time ly appealed. On appeal, Carrasco-Oritz’s appointed coun sel filed an Anders brief. When an attorney conscientiously exam ines a case and determines that an appeal would be frivolous, counsel must submit a brief advising the cour t and requesting permission to withdraw. Anders, 386 U.S. at 744. The defendant may then s ubmit a pro se brief, id., as Carrasco-Ortiz did. If, after review, the court determines the appeal is frivolous, it may grant the reque st to withdraw and dismiss the appeal. Id. However, if the court finds any “legal points ar guable on their merits (and therefore not3 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 Carr asco-Ortiz did not raise the i ssue in the district court, any review would be for plai n error. See United States v. Pablo, 696 F.3d 1280, 1287 (10th Cir. 2012). Even a ssuming 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-settle d 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 fri volous. However, we also note counsel’s argument below, which he omits from hi s Anders brief. In his sentencing memorandum, counsel argued that the § 3553( a) factors required a below-Guidelines sentence “based on the excessive and un warranted severity of the Sentencing Guideline itself.” This argument constitu tes another potentially appealable issue, particularly because a district court ma y deviate from the Guidelines “based on policy disagreements with them,” United St ates v. Lopez-Maci as, 661 F.3d 485, 490 (10th Cir. 2011). The dist rict court observed that “t he 16-level enhancement does create some disproportiona tely 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 discreti on to vary the sentence does not overcome our previous holdings that th e enhancement is not presumptively or inherently unreasonable. See, e.g., Unite d States v. Avalos-E strada, 520 F. App’x 652, 655 (10th Cir. 2013) (unpublished) (collecting cases rejecting substantive unreasonableness arguments). T hus, 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 th is within-Guidelines sentence would be wholly frivolous.4 We have not uncovered any rulings fro m 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 St ates v. Godoy-Castaneda, 614 F. App’x. 768, 772 (5th Cir. 2015) (unpublished) ( holding that the firs t subsection of New York’s second degree murder statute “is w ithin 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 au thority—and the presence of persuasive authority to the contrary—we agree with co unsel that any argument that the district court committed plain error in classify ing the attempted second degree murder conviction as a crime of violence would be wholly frivolous. Because our record review does not reveal any non-fri volous 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 Carrasc o-Ortiz’s previous c onviction. However, the “Certificate of Disposition Indictment ” suggests that he was convicted under subsection one. The court considered th e same uncertainty, and made the same inference in Godoy-Castaneda, 614 F. App’x. at 773.