After examining the briefs and appellate record, this panel has determined *

unanimously to grant counsel’s request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent except under the doctrines of law of the case,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

November 6, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MARIA HERNANDEZ-SOLIS,

Defendant - Appellant.

No. 07-1109

(D.C. No. 06-cr-00386-EWN)

(D. Colo.)

ORDER AND JUDGMENT

*

Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.

Maria Hernandez-Solis pled guilty to a one-count indictment charging her

with illegal re-entry of a deported alien previously convicted of an aggravated

felony. See 8 U.S.C. § 1326(a), (b)(2). The district court sentenced her to 27

months imprisonment, followed by three years of supervised release. On appeal,

Ms. Hernandez-Solis’s counsel filed an Anders brief and moved to withdraw as

counsel. See Anders v. California, 386 U.S. 738 (1967). We received no
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response from Ms. Hernandez-Solis, and the government also declined to file a

response. For the reasons set forth below, we discern no meritorious issues for

appeal, and we therefore grant the motion to withdraw and dismiss the appeal.

* * *

Authorities found Ms. Hernandez-Solis, a native of Mexico, in Colorado in

August 2006, after she had been deported from the United States on five prior

occasions. She was charged with one count of illegal re-entry following

deportation, in violation of 8 U.S.C. § 1326(a). Because her prior deportation

was subsequent to a conviction for an aggravated felony, Ms. Hernandez-Solis

faced a possible prison sentence of up to 20 years, pursuant to 8 U.S.C.

§ 1326(b)(2). Ms. Hernandez-Solis pled guilty to the one-count indictment

pursuant to a written plea agreement with the government.

Pursuant to the advisory United States Sentencing Guidelines

(“Guidelines”), Ms. Hernandez-Solis’s conviction carried a base offense level of

8. See U.S.S.G. § 2L1.2(a). But because she had been deported following a

conviction for an aggravated felony, the Guidelines recommended an 8-level

enhancement. See id. § 2L1.2(b)(1)(C). Subtracting 3 levels for acceptance of

responsibility, Ms. Hernandez-Solis’s final suggested offense level was 13. 

Additionally, because of her prior convictions, Ms. Hernandez-Solis was

classified at criminal history category level IV. That offense level and criminal
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history category produced a proposed Guidelines sentencing range of 24-30

months imprisonment with 2-3 years of supervised release.

Ms. Hernandez-Solis did not challenge any aspect of the presentence report,

which included the Guidelines range calculation and information about her

background, family, and other potentially relevant factors. At the sentencing

hearing, Ms. Hernandez-Solis’s counsel requested a sentence at the “low end” of

the Guidelines range, pursuant to the sentencing factors set out in 18 U.S.C.

§ 3553(a), because Ms. Hernandez-Solis “essentially grew up” in the United

States and her children currently reside here. Sentencing Hr’g Tr. at 3-4.

There being no objection to the presentence report, the district court

adopted its factual findings and Guidelines range calculation; the court also

acknowledged it had taken “full consideration of the factors specified” in 18

U.S.C. § 3553(a). Id. at 5, 7. The court stated that, although it understood the

circumstances that caused Ms. Hernandez-Solis “to keep coming back to this

country,” she has “a serious criminal history and does not appear to have been

significantly deterred by prior prison sentences.” Id. at 6. As a result, the district

court imposed a sentence of 27 months—in the middle of the Guidelines

range—finding that such sentence “is sufficient but not greater than necessary to

achieve the statutory purposes of a sentence of incarceration, including the need

for the sentence imposed to reflect the seriousness of the offense, to promote

respect for the law, to provide just punishment for the offense, to afford adequate
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deterrence to criminal conduct, and to protect the public from further crimes of

the defendant.” Id. 

* * *

Pursuant to the Supreme Court’s decision in Anders v. California, a courtappointed defense counsel may “request permission to withdraw [from an appeal]

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) (citing Anders, 386 U.S. at 744). This process requires counsel to

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. (citing Anders, 386 U.S. at 744).

In her Anders brief, counsel noted that this appeal would conceivably be

meritorious only if (1) the guilty plea were not voluntary or (2) the sentence were

unreasonable. After conducting a full examination of the record, we agree with

counsel’s conclusion that no basis in law or fact exists for either of these

arguments.

A valid guilty plea must be knowingly, intelligently, and voluntarily made. 

See United States v. Gigot, 147 F.3d 1193, 1197 (10th Cir. 1998); see also Fed. R.

Crim. P. 11. The record indicates that the district court fulfilled the requirements
- 5 -

set out in Rule 11 and those announced in Gigot to ensure the validity of the plea.

 See Plea Hr’g Tr. (indicating that the district court judge verified a factual basis

for the plea, questioned the defendant and confirmed that she fully understood the

charges against her and the consequences of the plea, and otherwise ensured that

the plea was freely, voluntarily, and intelligently made). Ms. Hernandez-Solis

has failed to put forward any evidence or arguments that would place the plea’s

validity in doubt, and so any appeal on these grounds would be frivolous.

We also fail to find any non-frivolous grounds for appeal as to the

reasonableness of the sentence. As counsel points out, the sentence fell in the

middle of the Guidelines range; as such, we accord it a presumption of

reasonableness. See Rita v. United States, 127 S. Ct. 2456, 2462-63 (2007). 

Bearing in mind the various sentencing factors set forth by Congress in 18 U.S.C.

§ 3553(a), we find no evidence indicating that the district court abused its

discretion in any way in sentencing Ms. Hernandez-Solis. The district court

explained its decision to impose a sentence in the middle of the Guidelines range

in terms of the factors under 18 U.S.C. § 3553(a), remarking on Ms. HernandezSolis’s criminal history and indicating that she “does not appear to have been

significantly deterred by prior prison sentences.” The court fully considered Ms.

Hernandez-Solis’s background and the applicable 18 U.S.C. § 3553(a) factors in

fashioning her sentence. We can find no evidence indicating any possible

grounds for appeal of this sentence.
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* * *

For the foregoing reasons, we grant counsel’s motion to withdraw and

dismiss the appeal.

ENTERED FOR THE COURT

Neil M. Gorsuch

Circuit Judge