United States vs. Chavez-Martinez, No. 07-2000 (10th Cir. 2007)

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FILED United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS September 20, 2007 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court U N ITED STA TES O F A M ER ICA, Plaintiff - Appellee, No. 07-2000 (D.C. Nos. 06-CR-258-JC) v. ELFIDO CH AV EZ-M AR TINEZ, (D .N.M .) Defendant - Appellant. OR D ER AND JUDGM ENT * Before KELLY, M U RPH Y, and O BRIEN, Circuit Judges. ** Defendant-Appellant Elfido Chavez-M artinez pleaded guilty to reentry of a deported alien previously convicted of an aggravated felony. See 8 U.S.C. §§ 1326(a)(1), (2) & (b)(2). He was sentenced to twenty-seven months imprisonment and two years unsupervised release. On appeal, M r. ChavezM artinez s counsel has filed an Anders brief because he identified no potentially * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 cause is therefore ordered submitted without oral argument. meritorious issues for appeal. See Anders v. California, 386 U.S. 738 (1967). M r. Chavez-M artinez was served with a copy of the Anders brief and has failed to respond. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we dismiss the appeal and grant counsel s motion to withdraw. Following M r. Chavez-M artinez s guilty plea, a presentence investigation report (PSR ) was prepared. The PSR calculated the applicable Guideline sentencing range to be twenty-seven to thirty-three months imprisonment. At the sentencing hearing, M r. Chavez-M artinez requested that the district court vary from the bottom of the Guideline range and sentence him to twenty-one months imprisonment, which would have been equivalent to the sentence imposed had M r. Chavez-M artinez been sentenced after entering a plea pursuant to the fasttrack program. M r. Chavez-M artinez s counsel at the sentencing hearing, M r. Bustamante, claimed that M r. Chavez-M artinez asked prior counsel to enter a fast-track plea. For reasons unknown to M r. Bustamante, the government refused to grant fast-track and proceeded with an indictment. At sentencing, the district court refused to grant M r. Chavez-M artinez s request for a variance. W e agree with M r. Chavez-M artinez s counsel that there exist no potentially meritorious issues on appeal. First, there is no reason to believe that M r. Chavez-M artinez s plea was anything but knowing and voluntary. See Brady v. United States, 397 U.S. 742, 755-56 (1970). Next, the district court was not permitted to take into account the availability of the fast-track program to other -2- criminal defendants in fashioning a reasonable sentence under the 18 U.S.C. § 3553(a) factors, see United States v. M artinez-Trujillo, 468 F.3d 1266, 1269 (10th Cir. 2006), and M r. Chavez-M artinez has no enforceable right to participate in the fast-track program. Finally, M r. Chavez-M artinez did not lodge an objection to any facts contained within the PSR, see Fed. R. Crim. P. 32(i)(3)(A) (allowing a court at sentencing to accept any undisputed portion of the presentence report as a finding of fact ); his sentence fell at the low end of the presumptively reasonable and correctly calculated Guideline range and no facts exist to rebut the presumption, see Rita v. United States, 127 S. Ct. 2456, 2462-63 (2007); United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006); and the sentence imposed was adequately reasoned, see United States v. Chavez-Calderon, F.3d , 2007 W L 2171363, at *2 (10th Cir. 2007). Accordingly, we DISM ISS this appeal and G RA N T counsel s motion to withdraw. Entered for the Court Paul J. Kelly, Jr. Circuit Judge -3-

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