*

This Order and Judgment is not binding precedent, except under the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.

**After examining the briefs and the appellate record, this three-judge

panel has determined unanimously that oral argument would not be of

material assistance in the determination of this appeal. See Fed. R.App. P.

34(a); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without

oral argument.

FILED

United States Court of Appeals

Tenth Circuit

July 9, 2009

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 08-2143

v. (D. New Mexico)

MIGUEL ROBLES-ORTEGA, 

Defendant-Appellant.

 (D.C. No. 2:07-CR-01274-RB-1)

ORDER & JUDGMENT*

Before HENRY, Chief Judge, and PORFILIO and BRORBY, Circuit

Judges. **

Miguel Robles-Ortega appeals his conviction for illegal reentry of the

United States by a removed alien. On February 4, 2009, his attorney filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967), seeking to
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withdraw because she determined after a examination of the record that the

appeal was wholly frivolous. Because Mr. Robles’s release and deportation

moot his claims, we lack jurisdiction to entertain a challenge to the length of

Mr. Robles’s sentence. Therefore, we grant counsel’s motion to withdraw

and dismiss Mr. Robles’s appeal. 

I. BACKGROUND

Mr. Robles pleaded guilty to illegal reentry by a removed alien in

violation of 8 U.S.C. § 1326(a)(1), (a)(2), and (b)(2) without the benefit of a

plea agreement. The presentence report assigned Mr. Robles a criminal

history category of VI and determined the guideline range to be 24-30

months. Mr. Robles objected that the report overstated his criminal history

and argued that he should receive leniency because his criminal history

points stemmed from his substance abuse problems. Mr. Robles also asked

the court to consider that he re-entered the United States to visit his dying

mother and that he planned to return to Mexico. (Indeed, Mr. Robles was

arrested in May of 2007 and his mother passed away in June of 2007. 

According to the government, Mr. Robles signed an affidavit stating that he

returned to the United States to work and see his children, not to visit his

dying mother. Mr. Robles denied swearing that he entered the United States

to work and see his children.) 
1

We take judicial notice of this information regarding Mr. Robles’s

release that is available to the public on the Bureau of Prisons’ Inmate

Locator Service. See Demis v. Sniezek, 558 F.3d 508, 513 n.2 (6th Cir.

2009); see also United States v. Montgomery, 550 F.3d 1229, 1231 n.1 (10th

Cir. 2008).

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Based on the government’s agreement that a criminal history category

of V with a corresponding range of 21 to 27 months would be more

appropriate, the court granted Mr. Robles a downward departure and

sentenced him to 21 months of imprisonment followed by two years of

unsupervised release under the conditions that he comply with immigration

laws and regulations and that immigration authorities begin removal

proceedings “immediately or during [his] sentence.” Rec. vol. I, at 14. 

Having already served a year during the pendency of the proceedings,

Mr. Robles was released January 26, 2009, a few days before his attorney

filed her Anders brief. 1

 Presumably, Mr. Robles has been removed from the

United States. See United States v. Luciano-Guillermo, 305 F.App’x 511,

514 (10th Cir. 2008) (“[W]e are comfortable operating on the premise that

[the defendant] was removed from the United States pursuant to the district

court’s recommendation.”). 

II. DISCUSSION

In Anders, the Supreme Court held that if a defendant’s counsel “finds

[the defendant’s] case to be wholly frivolous, after a conscientious
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examination of it, [she] should so advise the court and request permission to

withdraw.” 386 U.S. at 744. Counsel must submit to both the court and her

client a “brief referring to anything in the record that might arguably

support the appeal.” Id. The defendant may then “raise any points that he

chooses.” Id. In accordance with Anders, counsel here refers this court to a

possible argument that Mr. Robles’s below-guideline sentence could be

unreasonable if the district judge did not adequately consider the 18 U.S.C.

§ 3553(a) factors. Mr. Robles has not filed a response to counsel’s

argument. The United States does not object to counsel’s withdrawal and

has elected not to file a response. 

We must examine all the proceedings to determine whether Mr.

Robles’s appeal is frivolous. Id. “If [we] so find[] [we] may grant

counsel’s request to withdraw and dismiss the appeal.” Id. “On the other

hand, if [we] find[] any of the legal points arguable on their merits (and

therefore not frivolous) [we] must, prior to decision, afford the indigent

[defendant] the assistance of counsel to argue the appeal.” Id.

Though Mr. Robles pleaded guilty, he retained the right to appeal. As

required by Anders, we have conducted a full examination of the record

before us. As to his conviction, the record shows that Mr. Robles’s guilty

plea was voluntarily, knowingly, and intelligently entered; he was advised

of and understood his possible sentence and other punishments he might
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face in conjunction with his guilty plea to the offense charged; and

sufficient evidence supported his conviction. Thus, the record contains no

grounds to support a challenge to Mr. Robles’s guilty plea or conviction;

therefore his only avenue of appeal relates to the length of his sentence. See

United States v. Quezada-Enriquez, 567 F.3d 1228, 1232 n.2 (10th Cir.

2009). 

Unlike his conviction however, Mr. Robles, may not challenge the

length of his sentence because he has been released and deported. When an

alleged injury “disappears or is resolved extrajudicially prior to the

appellate court’s decision, the appellant can no longer satisfy the Article III

case or controversy jurisdictional requirement and the appeal is moot.”

United States v. Meyers, 200 F.3d 715, 718 (10th Cir. 2000). In United

States v. Vera Flores, we held that an appellant could not challenge the

length of his prison sentence and of his supervised release, because officials

had already released and deported him. 496 F.3d 1177, 1180-81 (10th Cir.

2007). In such instances, the appellant “is in no way affected by any

sentencing error . . . because [the appellant’s] deportation has eliminated all

practical consequences associated with serving a term of supervised

release,” and therefore, he has no injury that the court can remedy. Id. at

1180-82. Because Mr. Robles has been released subject only to

unsupervised release requiring his removal, any challenges to the length of
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his sentence are similarly moot. Thus, we lack jurisdiction to entertain an

appeal of Mr. Robles’s sentence. 

III. CONCLUSION

Because the record contains no support for a challenge to Mr. Robles’s

conviction and because we lack jurisdiction to entertain a challenge to the

length of his sentence, we DISMISS Mr. Robles’s appeal and GRANT

counsel’s motion to withdraw. 

Entered for the Court,

Robert H. Henry

Chief Judge