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    United States v. Soto-Zuniga, 10th Cir. (2009)

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    This document is an order and judgment from the United States Court of Appeals for the Tenth Circuit regarding Ivan Soto-Zuniga's appeal of his 46 month sentence for illegal re-entry after deportation. The court affirmed the sentence, finding that the district court did not err in its calculation of the sentencing guidelines or criminal history category. The court also granted defense counsel's motion to withdraw, as it found no non-frivolous issues to raise on appeal.

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    United States v. Soto-Zuniga, 10th Cir. (2009)

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    This document is an order and judgment from the United States Court of Appeals for the Tenth Circuit regarding Ivan Soto-Zuniga's appeal of his 46 month sentence for illegal re-entry after deportation. The court affirmed the sentence, finding that the district court did not err in its calculation of the sentencing guidelines or criminal history category. The court also granted defense counsel's motion to withdraw, as it found no non-frivolous issues to raise on appeal.

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    Filed: 2009-01-27 Precedential Status: Non-Precedential Docket: 08-2068

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    This document is an order and judgment from the United States Court of Appeals for the Tenth Circuit regarding Ivan Soto-Zuniga's appeal of his 46 month sentence for illegal re-entry after deportation. The court affirmed the sentence, finding that the district court did not err in its calculation of the sentencing guidelines or criminal history category. The court also granted defense counsel's motion to withdraw, as it found no non-frivolous issues to raise on appeal.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
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    12 views4 pages

    United States v. Soto-Zuniga, 10th Cir. (2009)

    Uploaded by

    Scribd Government Docs
    This document is an order and judgment from the United States Court of Appeals for the Tenth Circuit regarding Ivan Soto-Zuniga's appeal of his 46 month sentence for illegal re-entry after deportation. The court affirmed the sentence, finding that the district court did not err in its calculation of the sentencing guidelines or criminal history category. The court also granted defense counsel's motion to withdraw, as it found no non-frivolous issues to raise on appeal.

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    of 4

    FILED

    United States Court of Appeals


    Tenth Circuit

    UNITED STATES COURT OF APPEALS


    TENTH CIRCUIT

    January 27, 2009


    Elisabeth A. Shumaker
    Clerk of Court

    UNITED STATES OF AMERICA,


    Plaintiff-Appellee,
    v.

    No. 08-2068
    District of New Mexico

    IVAN SOTO-ZUNIGA,

    (D.C. No. 2:07-CR-01181-LH-1)

    Defendant-Appellant.

    ORDER AND JUDGMENT *

    Before TACHA, KELLY and McCONNELL, Circuit Judges.

    On July 26, 2007, Ivan Soto-Zuniga pled guilty to violating 8 U.S.C.


    1326(a)(1) & (2) and 1326(b)(2), Re-entry of a Removed Alien Previously
    Convicted of an Aggravated Felony. The presentence report (PSR) found that Mr.
    Soto-Zuniga had an adjusted offense level of 21 and a criminal history category
    of III, yielding a recommended sentence of 46 to 57 months. He was sentenced to
    46 months.

    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. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
    therefore 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. It may be cited, however, for its persuasive value consistent
    with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

    Mr. Soto-Zuniga timely appealed his sentence. His counsel, Arturo B.


    Nieto, filed an Anders brief and moved to withdraw as counsel. See Anders v.
    California, 386 U.S. 738 (1967). The government declined to submit a brief, and
    Mr. Soto-Zuniga did not file a brief or other pleadings. Therefore, our resolution
    of this case relies on his counsels Anders brief and our own independent review
    of the record. Because we discern no non-frivolous issues on appeal, we grant
    counsels motion to withdraw and dismiss the appeal.
    In his objection to the PSR, Mr. Soto-Zuniga raised three major issues.
    First, he argued that there was no documentation to support the allegation that
    he had been convicted of a prior drug trafficking offense. When the
    documentation was provided, however, this objection was withdrawn.
    Appellants Br. 8. Second, he said that the government was in effect double
    counting his trafficking conviction by using it for his sixteen level enhancement
    and by assessing criminal history points for the same conviction. Third, Mr.
    Soto-Zuniga asserted that a criminal history category of III over-represented his
    criminal history, and that a category of II would more accurately reflect his
    history. Because the first objection was withdrawn by Mr. Soto-Zuniga, we
    consider here only the latter two issues.
    But we must first make a point about the standard of review in this case.
    Counsel for Mr. Soto-Zuniga asserts in his brief that the relevant standard of
    review should be plain error. Appellees Br. 9. We disagree. The plain error
    -2-

    standard applies to legal objections that were not properly raised below and are
    raised for the first time only on appeal. See, e.g., United States v. Ciapponi, 77
    F.3d 1247, 1252 (10th Cir. 1996). But in this case, the issues noted in the prior
    paragraph were raised before the district court in Mr. Soto-Zunigas objection to
    the PSR. Accordingly, the relevant standard of review is de novo for legal
    questions regarding the application of the guidelines, and we review the courts
    factual conclusions to see if they are clearly erroneous. United States v.
    Wiseman, 172 F.3d 1196, 1217-18 (10th Cir. 1999).
    In any event, we agree with counsel for Mr. Soto-Zuniga that no nonfrivolous issues are raised here. The supposed problem of double
    countingusing a conviction both in computing the offense level and in
    determining the criminal history categoryhas been addressed by this court
    before. Indeed, we have consistently held that a defendant's prior record may be
    used in determining both sentence enhancements and criminal history category.
    United States v. Ayala-Romero, 239 Fed. Appx 457, 459 (10th Cir. 2007); see
    also United States v. Alessandroni, 982 F.2d 419, 421 (10th Cir.1992); United
    States v. Florentino, 922 F.2d 1443, 1446 (10th Cir.1990). The district court did
    nothing wrong in using the same conviction in separate steps of its sentencing
    calculation.
    Mr. Soto-Zuniga also maintained that his criminal history was overrepresented because his two 1997 convictions followed closely on the heels of
    -3-

    one another and the court that convicted him in Arizona treated [them]
    effectively, in terms of punishment, as the same or at least not sufficiently grave
    to justify separate sentences. Sentencing Transcript, R. Vol. III, 4. The district
    court resisted the suggestion that these factors should put Mr. Soto-Zuniga into a
    lower criminal history category, saying the idea that an Arizona judge sentenced
    him concurrently on two consecutive convictions does not give rise to the
    conclusion that there was only one crime. There were two crimes. He was
    convicted twice. He was sentenced to serve two sentences for those two crimes
    concurrently. Id. at 5. We do not think, consistent with the district court
    judges reasoning at sentencing, that Mr. Soto-Zunigas criminal history was
    substantially over-represent[ed], necessitating a downward sentencing
    departure. See U.S.S.G. 4A1.3(b)(1). 1
    Finding no non-frivolous arguments on appeal, we grant counsels motion
    to withdraw and dismiss the appeal. The judgment of the United States District
    Court for the District of New Mexico is AFFIRMED.
    Entered for the Court,
    Michael W. McConnell
    Circuit Judge
    1

    Mr. Soto-Zuniga also briefly suggested that a sentence of twelve months


    and one day would be sufficient to adequately deter him from future crimes. R.
    Vol. I, 8. The district court did not err in finding this unpersuasive.

    -4-

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