*

This order and judgment is not binding precedent except under the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

August 14, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 08-2039

v. (D. New Mexico)

PATRICIA MARTINEZ-DE

NEVAREZ,

Defendant - Appellant.

(D.C. No. 2:07-CR-01267-MV-1)

ORDER AND JUDGMENT*

Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.

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.

Patricia Martinez-De Nevarez pleaded guilty to one count of illegally

reentering the United States in violation of 8 U.S.C. § 1326(a). The United States
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Probation Office prepared a pre-sentence report (“PSR”). The PSR applied a

sixteen-level enhancement to the defendant’s base offense level, pursuant to

U.S.S.G. § 2L1.2(b)(1)(A)(ii), for committing a prior crime of violence; in this

case, burglarizing a residence in Texas. The defendant’s resulting offense level

was twenty-one. Her criminal history category was I, establishing an advisory

guidelines’ range of thirty-seven to forty-six months’ imprisonment. The

probation officer, however, recommended a below-guidelines sentence, because

the defendant’s prior burglary conviction occurred in 1984, twenty-four years

prior to this offense, and her involvement in the burglary was minor compared to

her co-defendants.

Martinez-De Nevarez filed several objections to the PSR. Although the

district court overruled the defendant’s objections, it granted a downward

variance. The defendant was sentenced to twelve months’ and one day

imprisonment. 

Martinez-De Nevarez filed a timely Notice of Appeal and her counsel,

James Baiamonte, filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), moving to withdraw as counsel. Under Anders, counsel may “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). Counsel is required to submit a

brief to both the defendant and this court indicating any potential appealable
-3-

issues. Id. The defendant may then submit additional arguments. “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. (citation omitted). Martinez-De

Nevarez’s counsel filed his Anders brief on April 21, 2008. The defendant has

not submitted any additional arguments. Our conclusions, therefore, are based on

counsel’s Anders brief and our own review of the record.

After United States v. Booker, 543 U.S. 220 (2005), this court reviews

sentences for an abuse of discretion, asking whether the sentence is reasonable. 

United States v. Gall, 128 S. Ct. 586, 594 (2007). We first determine whether the

sentence is procedurally reasonable. United States v. Muñoz-Nava, 524 F.3d

1137, 1146 (10th Cir. 2008). We next “consider the sentence’s substantive

reasonableness utilizing the abuse-of-discretion standard.” Id. In this case, the

district court properly calculated the defendant’s advisory guideline range and

committed no procedural error. Further, the sentence was substantively

reasonable. The district court concluded the defendant’s advisory guidelines

range over-represented the seriousness of the offense and therefore granted the

defendant a twenty-five month downward variance. Martinez-De Nevarez thus

seeks to argue a twenty-five month downward variance was unreasonable and the

court should have imposed an even greater downward variance. This argument is
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without merit. Giving due deference to the district court’s decision that the 18

U.S.C. § 3553(a) factors justify the extent of the variance, we find the district

court’s sentence was reasonable. Muñoz-Nava, 524 F.3d at 1149.

Our review of the record reveals no other claims arguable on their merits,

and we accordingly conclude that Martinez-De Nevarez’s appeal is wholly

frivolous. Counsel’s motion to withdraw is granted and this appeal is dismissed.

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge