UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RAFAEL CERVANTESVALERIANO, a/k/a Lorenzo 

Sanchez, a/k/a Arturo Cervantes,

Defendant - Appellant.

No. 14-6233

(D.C. No. 5:14-CR-00246-HE-1)

(W.D. Oklahoma)

ORDER AND JUDGMENT*

Before BRISCOE, Chief Judge, MURPHY and BACHARACH, Circuit Judges.

Mr. Rafael Cervantes-Valeriano was convicted of illegal reentry. For 

sentencing, the guideline range was 57 to 71 months, and the district court 

 * The Court has determined that oral argument would not materially 

aid our consideration of the appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. 

R. 34.1(G). Thus, we have decided the appeal based on the briefs.

Our order and judgment does not constitute binding precedent except 

under the doctrines of law of the case, res judicata, and collateral estoppel.

FILED

United States Court of Appeals

Tenth Circuit

June 2, 2015

Elisabeth A. Shumaker

Clerk of Court

Appellate Case: 14-6233 Document: 01019438752 Date Filed: 06/02/2015 Page: 1 
2

varied downward1 to sentence Mr. Cervantes-Valeriano to 56 months in 

prison. Mr. Cervantes-Valeriano appealed, challenging only the length of 

his sentence.

Mr. Cervantes-Valeriano’s appointed counsel filed a brief invoking 

Anders v. California, 386 U.S. 738 (1967), and moving to withdraw from 

representation based on the absence of any arguably meritorious appeal 

points. See Anders v. California, 386 U.S. 738 (1967). We conclude that 

the only grounds for appeal would be frivolous. Thus, we grant the motion 

to withdraw and dismiss the appeal. 

I. Anders

Under Anders v. California, attorneys can seek leave to withdraw 

from an appeal when they conscientiously examine a case and determine 

that an appeal would be frivolous. Anders v. California, 386 U.S. 736, 744 

(1967). To obtain leave to withdraw, an attorney must

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.

United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005).

 1 The court varied downward to give Mr. Cervantes-Valeriano credit 

for a month he had spent in immigration custody.

Appellate Case: 14-6233 Document: 01019438752 Date Filed: 06/02/2015 Page: 2 
3

Defense counsel filed a brief, and Mr. Cervantes-Valeriano bypassed 

the opportunity to file his own brief. In these circumstances, we base our 

decision on (1) the brief filed by defense counsel, and (2) the record on 

appeal.

II. Standard of Review

We have nothing to suggest an error in the guideline calculation, and 

the sentence fell below the guideline range. As a result, the sentence is 

presumptively reasonable in length. See United States v. Trent, 767 F.3d 

1046, 1051 (10th Cir. 2014). The presumption is rebuttable, but Mr. 

Cervantes-Valeriano bears the burden of showing that the sentence is 

unreasonable under the sentencing factors in 18 U.S.C. § 3553(a). United 

States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006).

III. Reasonableness of the Sentence

To attempt that showing, Mr. Cervantes-Valeriano could argue that 

(1) the guideline range unfairly double counts prior convictions, (2) an 

enhancement under § 2L1.2(b)(1)(A) lacks empirical support, and (3) the 

court should have applied a downward variance. These arguments would be 

frivolous.

We have already upheld the same guideline against a similar 

challenge involving double counting of prior convictions. United States v.

Algarate-Valencia, 550 F.3d 1238, 1245 (10th Cir. 2008).

Appellate Case: 14-6233 Document: 01019438752 Date Filed: 06/02/2015 Page: 3 
4

We have also rejected a challenge to the enhancement under 

§ 2L1.2(b)(1)(A), holding that it is valid even if the Sentencing 

Commission did not provide empirical support. United States v. AlvarezBernabe, 626 F.3d 1161, 1166 (10th Cir. 2010).

Finally, the district court considered the sentencing factors in 18 

U.S.C. § 3553(a), stating that the guideline calculation was reasonable “in 

terms of evaluating the seriousness of the offense,” “the need to deter [Mr. 

Cervantes-Valeriano] from the prospect of returning illegally again,” and 

“the need to protect the public from the risk of further crimes.” Sentencing 

Tr. at 10-12. We have no reason to question this explanation.

No court could characterize the sentence as unreasonable. As a result, 

we grant counsel’s motion to withdraw and dismiss the appeal.

Entered for the Court

Robert E. Bacharach

Circuit Judge

Appellate Case: 14-6233 Document: 01019438752 Date Filed: 06/02/2015 Page: 4