F I L E D
United States Court of Appeals
UNITED STATES COURT OF APPEALS
NOV 2 2004
UNITED STATES OF AMERICA,
v. No. 04-2089
JOSE LUIS ESPINOZA-PINTO, (D.Ct. No. CR-03-2166-RB)
ORDER AND JUDGMENT *
Before TACHA, Chief Circuit Judge, and PORFILIO and BRORBY, Senior
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is
therefore ordered submitted without oral argument.
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
Appellant Jose Luis Espinoza-Pinto, a federal prisoner represented by
counsel, pled guilty to one count of reentry of a deported alien previously
convicted of an aggravated felony, in violation of 8 U.S.C. § 1326(a)(1) and (2)
and (b)(1). The district court sentenced Mr. Espinoza-Pinto to forty-one months
imprisonment followed by two years supervised release. Pursuant to an Anders
brief filed by his counsel, Mr. Espinoza-Pinto appeals the district court's
sentence. See Anders v. California, 386 U.S. 738
, 744 (1967). Pursuant to 18
U.S.C. § 3742, we decline to review the appeal of Mr. Espinoza-Pinto's sentence,
and accordingly, dismiss his appeal.
After Mr. Espinoza-Pinto pled guilty, the probation officer prepared a
presentencing report in which he calculated Mr. Espinoza-Pinto's sentence,
determining: 1) his base offense level was 8, pursuant to United States
Sentencing Guideline §2L1.2(a); 2) the base level should be increased sixteen
levels to 24, pursuant to Sentencing Guideline §2L1.2(b)(a)(A)(ii), because he
had been deported following conviction for an aggravated felony that was a crime
of violence; 3) he should receive a three-level reduction for acceptance of
responsibility, pursuant to Sentencing Guideline §3E1.1; and 4) the total offense
level should be 21. Based on Mr. Espinoza-Pinto's prior criminal history,
including a prior felony conviction for second-degree robbery, the probation
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officer calculated his criminal history level at II, resulting in a guideline
sentencing range of forty-one to fifty-one months imprisonment. At sentencing,
the district court followed the recommendations contained in the presentencing
report and sentenced Mr. Espinoza-Pinto at the low end of the applicable
guideline range to forty-one months imprisonment.
After Mr. Espinoza-Pinto filed a timely notice of appeal, his counsel filed
an Anders appeal brief, alleging no meritorious appellate issues exist and
requesting an order permitting him to withdraw as counsel. See Anders, 386 U.S.
at 744. Specifically, his counsel points out the district court sentenced Mr.
Espinoza-Pinto within the applicable guideline range, including the correct
offense level and criminal history category. As a result, he suggests this court
lacks jurisdiction to review the sentencing decision because the district court did
not erroneously apply the guidelines or sentence Mr. Espinoza-Pinto in violation
of the law. Pursuant to Anders, this court gave Mr. Espinoza-Pinto an opportunity
to raise points in response to the Anders brief, to which he responded, claiming he
"waived [his] deportation" at the immigration hearing without knowledge of his
rights under the Immigration and Naturalization Act. Id. However, his motion
clearly omits facts or information in support of his claim.
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Under 18 U.S.C. § 3742(a), a sentence which falls within the Sentencing
Guidelines cannot be successfully appealed unless it is imposed in violation of
law, as a result of an incorrect application of the Guidelines, or is otherwise
premised on facial illegality, improper calculations, or clearly erroneous fact
findings. See United States v. Garcia, 919 F.2d 1478
, 1479, 1481 (10th Cir.
1990) (relying on 18 U.S.C. § 3742(a)(1) and (2)). In other words, we will not
review an appeal concerning a sentence which the defendant has not shown meets
With these principles in mind and after a careful review of the record
concerning Mr. Espinoza-Pinto's sentence, it is clear he has not shown the district
court imposed his sentence in violation of law or as a result of an incorrect
application of the Sentencing Guidelines, or that his sentence is otherwise
improper under 18 U.S.C. § 3742. Instead, Mr. Espinoza-Pinto's sentence falls
within the appropriate guideline range, and as his counsel points out, he was
sentenced at the bottom of the applicable guideline range, about which he cannot
complain. In addition, Mr. Espinoza-Pinto's pro se argument concerning his
initial deportation hearing does not otherwise establish that his sentence is
improper under § 3742. Because the criteria to appeal a sentence under 18 U.S.C.
§ 3742(a) has not been met, we decline to review Mr. Espinoza-Pinto's appeal of
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his sentence. Accordingly, we grant counsel's request to withdraw and dismiss
Mr. Espinoza-Pinto's appeal.
Entered by the Court:
United States Circuit Judge
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