United States of America, Plaintiff-appellee, v. Reynaldo Torres-saucedo, Defendant-appellant, 68 F.3d 484 (10th Cir. 1995)

ORDER AND JUDGMENT¹ 

The parties have agreed that this case may be submitted for decision on the briefs. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.2. 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); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Counsel for Appellant Reynaldo Torres-Saucedo filed an Anders brief, stating:

Defense counsel filed a notice of appeal in this cause at the request of the Appellant Torres-Saucedo, and has examined the transcripts of record as well as the presentence report in this cause in an attempt to discover some error on the part of the trial court in imposing a 12-month sentence based upon an upward adjustment for obstruction of justice. After review of the record in this cause and the transcripts herein, counsel is unable to find error by the trial court in the guideline sentence imposed. However, Appellant Torres-Saucedo is unwilling to dismiss the instant appeal, notwithstanding undersigned counsel's inability to discover error. Accordingly, counsel submits the instant brief and states that counsel can discover no issue of error in the sentence imposed. Counsel hereby requests leave to withdraw as counsel, in the absence of any error counsel can detect.

Appellant's Br. at 3.

Mr. Reynaldo Torres-Saucedo and Mr. Aguiles Chavez-Palacios were arrested while transporting illegal aliens. They were indicted on two counts of Transporting an Illegal Alien and Aiding and Abetting, in violation of 8 U.S.C. 1324(a) (1) (A) and 18 U.S.C. 2.

Both defendants pled not guilty. Mr. Torres-Saucedo was released on a $5,000 unsecured bond. After Mr. Torres-Saucedo failed to appear for trial, he was indicted for failure to appear at the jury trial in violation of 18 U.S.C. 3146.

More than a year later Mr. Torres-Saucedo was apprehended in Denver, Colorado. Following his transfer back to New Mexico, he pled guilty to Count I of the original indictment. His guilty plea appears to have been in exchange for dismissal of Count II of the original indictment and the charge of failure to appear.

Prior to sentencing, Mr. Torres-Saucedo objected to the recommendation in his Presentence Report that he receive a two-level upward adjustment for obstruction of justice based on his failure to appear for trial.²  He argued the upward adjustment was unwarranted because the government suffered no prejudice from his failure to appear since Mr. Chavez-Palacios was convicted at trial in the absence of Mr. Torres-Saucedo.³  Mr. Torres-Saucedo, providing a letter from a medical doctor in Mexico, also offered as a mitigating factor that he failed to appear for the trial because his mother was ill. The district court rejected the defendant's arguments.

The Defendant was sentenced to twelve months imprisonment to be followed by a three-year term of supervised release. His counsel motioned the court to change the sentence from twelve months to a sentence of twelve months and one day so he could receive credit for good time. R. Vol. I, No. 75. The district court denied this motion. R. Vol. I, No. 77. Mr. Torres-Saucedo filed a timely notice of appeal on December 20, 1994.

In Anders v. California, 386 U.S. 738 (1967), the Supreme Court set forth the procedure for appellate counsel to withdrawal when he finds his case to be wholly without merit. Anders instructs counsel to advise the court that his case is frivolous and to request permission to withdraw. 386 U.S. at 744. Anders further instructs:

That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court--not counsel--then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous.

Id.

In accordance with the procedures set forth in Anders, this court has made an independent and thorough examination of the proceedings in this case. Our examination has led us to conclude there is no basis for appeal.

The request by Appellant's counsel to withdraw is granted and the appeal is DISMISSED.