UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JOSE LUIS MURGUIA-MARQUEZ, Defendant - Appellant. No. 16-6285 (D.C. No. 5:15- CR-00239-F-1) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before LUCERO , O’BRIEN , and MORITZ , Circuit Judges.

________________ _________________ Jose Luis Murguia-Marquez appeals hi s conviction for unlawful reentry into the United States after removal, see 8 U.S.C. § 1326, and his resulting 37-month prison sentence. Defense counsel has filed an Anders brief and moved to withdraw as counsel. See Anders v. California , 386 U.S. 738, 744 (1967) (stating that if after “conscientious examination” of record, counsel finds appeal “wholly frivolous,” counsel may move to withdraw and contem poraneously file “brief referring to anything in the record that might arguabl y support the appeal”). Murguia-Marquez

* After examining the Anders brief and appellate r ecord, this panel has determined unanimously that oral argumen t wouldn’t materially assist in the determination of this appeal. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted wi thout oral argument. This order and judgment isn’t binding precedent, except under the doctrines of law of the case , res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### May 2, 2017 Elisabeth A. Shumaker Clerk of Court2 failed to file a pro se response, and the gove rnment declined to fi le a brief. We have reviewed the Anders brief and conducted a full exam ination of the record to determine whether Murguia-Marqu ez’ appeal is wholly frivolous. See United States v. Calderon , 428 F.3d 928, 930 (10t h Cir. 2005). Because we agree that it is, we dismiss the appeal and grant defe nse counsel’s motion to withdraw. See Anders , 386 U.S. at 744. Murguia-Marquez has been removed from the United States many times. After a 2015 traffic stop led to his arrest, Murguia-Marquez was charged with one count of unlawfully reentering the United States afte r removal. The government filed a motion in limine to preclude Murguia-Marquez fr om collaterally att acking at trial the validity of his prior removals. The district court set a deadline for Murguia-Marquez to respond to the government’s motion and orde red him to file, by the same deadline, any motion to dismiss based on the validity of his prior removals. After MurguiaMarquez failed to do either, the district court grante d the government’s motion. Murguia-Marquez then pleaded guilty, and the district court senten ced him within the Guidelines. In her Anders brief, defense counsel st ates that “[t]he only basis for this appeal asserted by Mr. Murguia-Marquez is that one of his previous removals was not ordered by a judge.” Anders Br. 15. We construe that argument as an attack on the validity of one of Murguia-Marquez’ pr ior removals. Defense counsel doesn’t elaborate on the basis for th at argument or how it might warrant disturbing MurguiaMarquez’ conviction or senten ce. But our independent review of the record suggests3 that no challenge to the validity of Murgui a-Marquez’ prior rem ovals would provide a non-frivolous basis for appeal. At the outset, we note that Murguia- Marquez waived all non-jurisdictional challenges to his convicti on by entering a guilty plea. See United States v. Dwyer , 245 F.3d 1168, 1170 (10th Cir. 2001). Neither the Anders brief nor the record indicates that the district court’s jurisd iction depended on the validity of MurguiaMarquez’ prior removals. Accordingly, w ith respect to his conviction, MurguiaMarquez waived any challenge to the valid ity of his prior removals—or any other non-jurisdictional challenge, for that matter—by entering a guilty plea. See id. That leaves only Murguia-Marquez’ sent ence. In reviewing that sentence, we “must first ensure that the district court committed no significant procedural error.” United States v. Lucero , 747 F.3d 1242, 1246 (10th Cir. 2014) (quoting Gall v. United States , 552 U.S. 38, 51 (2007)). “If th e district court’s decision is ‘procedurally sound,’ we ‘then consider the substantive reasonableness of the sentence imposed.’” Id. (quoting Gall , 552 U.S. at 51). A sentence is procedurally unreasonable if , e.g., the district court constructs it on the basis of clearly erroneous facts. United States v. Worku , 800 F.3d 1195, 1201 (10th Cir. 2015). Here, the r ecord indicates that the dist rict court relied on MurguiaMarquez’ prior removals in constructing his sentence: the court explained, “The reason for [the] intended senten ce is . . . [Murguia-Marquez’] history of . . . repeated illegal[] reentries into the United States . . . .” R. vol . 3, 51. Thus, Murguia-Marquez4 might be able to demonstrate procedural er ror if the district c ourt clearly erred in finding that he repeatedly and illega lly reentered the United States. But we see nothing in the record to s upport that conclusion. Even if MurguiaMarquez could demonstrate that his prior removals were invalid—as defense counsel indicates he wants to do—that wouldn’t n ecessarily call into qu estion the district court’s finding that Murguia-Ma rquez repeatedly and illegally reentered the United States. See United States v. Earle , 488 F.3d 537, 547 (1st Cir. 2007) (“In an illegal reentry prosecution, the lawfulness of depor tation simply is not an element of the offense.”). Thus, any procedur al challenge to the district court’s reliance on MurguiaMarquez’ prior reentrie s would be frivolous. Any challenge to the substantive re asonableness of Murguia-Marquez’ sentence would also be frivolous. Substa ntive reasonableness depends on “whether the length of the sentence is reasonable gi ven all the circumstan ces of the case in light of the factors set fort h in 18 U.S.C. § 3553(a).” United States v. AlapizcoValenzuela , 546 F.3d 1208, 1215 ( 10th Cir. 2008) (quoting United States v. Conlan , 500 F.3d 1167, 1169 (10th Cir. 2007)). “When reviewing a sentence for substantive reasonableness, this court employs the abuse-of-discre tion standard, a standard requiring ‘substantial deferenc e to district courts.’” United States v. Friedman , 554 F.3d 1301, 1307 (10th Cir. 2009) (i nternal citation om itted) (quoting United States v. Sells , 541 F.3d 1227, 1237 (10th Cir. 2008 )). And because Murguia-Marquez’ sentence falls within the Guidelines range, his sentence “is entitled to a presumption of substantive reasona bleness on appeal.” Alapizco-Valenzuela , 546 F.3d at 1215. Of5 course, Murguia-Marquez “may rebut this presumption by showing that his sentence is unreasonable in light of” the § 3553(a) factors. Id. But we see nothing in the record to indicate that Murguia-Mar quez can make that showing. Accordingly, we conclude that any challenge to the substantive re asonableness of Murgui a-Marquez’ sentence would also be frivolous. Because our examination of the record reveals no other non-frivolous basis for appeal, we dismiss the app eal and grant defense couns el’s motion to withdraw. See Calderon , 428 F.3d at 930.

Entered for the Court
Nancy L. Moritz Circuit Judge