FILED

United States Court of Appeals

Tenth Circuit

February 8, 2017

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 16-2200

JUAN ANTONIO MANDUJANOVEGA,

Defendant-Appellant.

(D.C. No. 2:16-CR-00328-WJ-1)

(D.N.M.)

 

ORDER AND JUDGMENT*

 

Before LUCERO, BALDOCK, and MORITZ, Circuit Judges.**

 

Defendant Mandujano-Vega originally pleaded guilty to unlawful reentry of

a removed alien in violation of 8 U.S.C. § 1326(a). The district court sentenced

Defendant to 40 months in prison to be followed by a two year term of supervised

release. Defendant’s supervised release commenced in August 2015. While on

supervised release, Defendant violated the standard release condition that he not

commit another crime. Defendant admitted he attempted to illegally reenter the

*

 This order and judgment is not binding precedent except under the doctrines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 appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination of

this appeal. Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.
United States at the Columbus, New Mexico, Port of Entry by presenting a

counterfeit United States non-immigrant visa. The district court revoked

Defendant’s supervised release and sentenced him to 21 months in prison, the low

end of his advisory guideline range. The court ordered this sentence to run

consecutively to the 30 month prison sentence the court imposed on Defendant the

same day for yet another unlawful reentry in violation of § 1326(a). See United

States v. Mandujano-Vega, No. 15-CR-4471-WJ (D.N.M. Aug. 3, 2016). Defendant

timely appealed his sentence for violating a condition of his supervised release. We

exercise jurisdiction under 18 U.S.C. § 3742(a). The Assistant Federal Public

Defender (AFPD) has filed an Anders brief, see Anders v. California, 386 U.S. 738

(1967), and now moves to withdraw as counsel for Defendant. The Government has

notified us that it does not intend to file a response brief. We affirm the district

court’s judgment and grant counsel’s motion to withdraw.

The AFPD identifies two possible non-frivolous arguments in support of

Defendant’s claim. First, the AFPD suggests the district court, despite its proper

guidelines range calculation, may have erred in sentencing Defendant to 21 months

in prison for violating his supervised release. But as counsel points out, we review

the substantive reasonableness of a sentence only for an abuse of discretion and

presume that a sentence within a properly-calculated guideline range is reasonable,

subject to rebuttal by the challenging party. See United States v. Steele, 603 F.3d

803, 809 (10th Cir. 2010) (abuse of discretion); United States v. Kristl, 437 F.3d

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1050, 1054 (10th Cir. 2006) (presumption of reasonableness). In this case,

Defendant did not argue in the district court that his sentence for violating a

supervised release condition, when viewed against the § 3553(a) factors, was

substantively unreasonable. Moreover, nothing in the district court record, which we

have carefully reviewed, rebuts the presumption that Defendant’s sentence is

substantively reasonable. Counsel is correct; there is no merit to his first suggestion.

 The AFPD also suggests the district court may have erred in ordering that

Defendant’s sentence for violating his supervised release be served consecutively to

his term of imprisonment for unlawful entry. But the district court simply exercised

its sound discretion in ordering that Defendant serve the two sentences

consecutively. See United States v. Cordova, 461 F.3d 1184, 1189 (10th Cir. 2006);

see also U.S.S.G. § 7B1.3(f) (directing that a sentence imposed upon a revocation

of supervised release be served consecutively to any sentence imposed on the

underlying criminal conduct). While Defendant requested that the court run the

sentences concurrently, he made no argument that the court acted unreasonably in

sentencing him as it did, and we see nothing in the record to indicate such. So

counsel is again correct; there is no merit to his second suggestion.

We appreciate the AFPD’s candor in filing an Anders brief. The judgment of 

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the district court is AFFIRMED and counsel’s motion to withdraw is GRANTED.

Entered for the Court,

Bobby R. Baldock

United States Circuit Judge

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