*

This order and judgment is not binding precedent except under the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

September 10, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 08-2024

v. (D. New Mexico)

LUIS HUMBERTO DE LEONDELGADO,

Defendant - Appellant.

(D.C. No. 2:07-CR-01811-JB)

ORDER AND JUDGMENT*

Before PORFILIO, ANDERSON, and BRORBY, 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.

Defendant and appellant Luis Humberto De Leon-Delgado pled guilty to

one count of illegal reentry by a previously deported alien, in violation of
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8 U.S.C. § 1326(a)(1), (2) and (b)(2). During the plea colloquy, the court

specifically told De Leon-Delgado that he could receive a sentence of up to

twenty years. De Leon-Delgado indicated that he understood the charges against

him, that he had discussed his case with his attorney, that he was satisfied with

his attorney’s representation, and that his plea of guilty was voluntary.

In preparation for sentencing, the United States Probation Office prepared a

presentence report (PSR). The PSR revealed that De Leon-Delgado had

previously been deported following a conviction for conspiring to transport illegal

aliens. With a total adjusted offense level of 21 and a criminal history category

of III, the advisory sentencing range under the United States Sentencing

Commission, Guidelines Manual (USSG), was forty-six to fifty-seven months.

De Leon-Delgado filed a sentencing memorandum, in which he requested a

sentence of twelve months, either as a variance pursuant to the 18 U.S.C.

§ 3553(a) factors or because a criminal history category III overrepresented his

criminal history. After concluding that a criminal history category III did,

indeed, substantially overstate De Leon-Delgado’s criminal history, and because

the court believed that a variance pursuant to the § 3553(a) factors was

appropriate, the court sentenced De Leon-Delgado to a below-Guidelines sentence

of thirty-four months. He seeks to appeal that sentence.

De Leon-Delgado’s appointed counsel, James Baiamonte, has filed an

Anders brief and has moved to withdraw as counsel. See Anders v. California,
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386 U.S. 738 (1967). De Leon-Delgado has not filed a response, and the

government has declined to file a brief. We therefore base our conclusion on

counsel’s brief and our own careful review of the record. For the reasons set

forth below, we agree with Mr. Baiamonte that the record in this case provides no

nonfrivolous basis for an appeal, and we therefore grant his motion to withdraw

and dismiss this appeal.

“We review sentences for reasonableness under a deferential abuse of

discretion standard.” United States v. Haley, 529 F.3d 1308, 1311 (10th Cir.

2008) (citing Gall v. United States, 128 S. Ct. 586, 591 (2007)). “Reasonableness

review is comprised of a procedural component and a substantive component.” 

Id. Procedural unreasonableness occurs “if the district court incorrectly

calculates or fails to calculate the Guidelines sentence, treats the Guidelines as

mandatory, fails to consider the § 3553(a) factors, relies on clearly erroneous

facts, or inadequately explains the sentence.” Id. A sentence is substantively

unreasonable if its length “is unreasonable given the totality of the circumstances

in light of the 18 U.S.C. § 3553(a) factors.” Id.

Furthermore, if a district court decides to grant a variance from the

advisory Guidelines sentencing range, as the court did in this case, “we generally

defer to its decision to grant . . . a variance based upon its balancing of the

§ 3553(a) factors.” Id. We will only conclude that the district court abused its

discretion “when it renders a judgment that is arbitrary, capricious, whimsical, or
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manifestly unreasonable.” United States v. Munoz-Nava, 524 F.3d 1137, 1146

(10th Cir. 2008) (internal quotations omitted).

Under Anders, “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 court 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). As indicated, De Leon-Delgado’s counsel

has filed his Anders brief in this appeal, to which neither De Leon-Delgado nor

the government has responded.

We agree with counsel that there is no nonfrivolous issue related to De

Leon-Delgado’s sentence which could form the basis for an appeal. We have

carefully reviewed the record, and can discern no procedural or substantive

unreasonableness with the sentence or the way it was calculated and imposed.
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For the foregoing reasons, we GRANT counsel’s motion to withdraw and

DISMISS this appeal.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge