United States v. Gonzalez-Carballo, 10th Cir. (2008)
United States v. Gonzalez-Carballo, 10th Cir. (2008)
United States v. Gonzalez-Carballo, 10th Cir. (2008)
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
v.
MAYOLO GONZALEZ-CARBALLO,
Defendant-Appellant.
After examining appellants brief and the 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) and 10th Cir. R.
34.1(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order and judgment is not binding precedent except under the doctrines of law of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. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
California, 386 U.S. 738 (1967). We received no response from Mr. GonzalezCarballo, and the government also declined to file a response. For the reasons set
forth below, we discern no meritorious issues for appeal, and we therefore grant
the motion to withdraw and dismiss the appeal.
* * *
In early January 2007, Mr. Gonzalez-Carballo was apprehended by a United
States Border Patrol Agent in Sunland Park, New Mexico. Mr. Gonzalez-Carballo
admitted to being a citizen of Mexico without proper immigration documents.
Further investigation revealed that Mr. Gonzalez-Carballo had been deported from
the United States only one month earlier, in December 2006, following a
conviction for participation in a conspiracy to transport illegal aliens. According
to Mr. Gonzalez-Carballo, he had pled guilty to the conspiracy charge only
because the government offered to recommend time served as his sentence. He
also explained that he felt he needed to return to work in the United States in
order to provide financial assistance to his mother and his wife, both of whom
suffer from significant health problems.
Mr. Gonzalez-Carballo was charged with one count of illegal re-entry
following deportation, in violation of 8 U.S.C. 1326(a)(1)-(2), (b)(2). Because
his prior deportation followed a conviction for an aggravated felony, Mr.
Gonzalez-Carballo faced a possible prison sentence of up to 20 years, pursuant to
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In his Anders brief, counsel noted that this appeal would conceivably be
meritorious only if (1) the guilty plea were not voluntary, or (2) the sentence were
unreasonable. After conducting a full examination of the record, we agree with
counsels conclusion that no basis in law or fact exists for either of these
arguments.
A valid guilty plea must be knowingly, intelligently, and voluntarily made.
See United States v. Gigot, 147 F.3d 1193, 1197 (10th Cir. 1998); see also Fed. R.
Crim. P. 11. The transcript of the plea hearing indicates that the district court
fulfilled the requirements set out in Rule 11 and those announced in Gigot to
ensure the validity of the plea. For example, the court verified that the plea was
freely, voluntarily, and intelligently made, see Plea Hearing Tr. at 6-7; that there
was a factual basis for the plea, id. at 8, 22-23; and that Mr. Gonzalez-Carballo
fully understood the charge against him and the consequences of his plea, id. at
11-22. Mr. Gonzalez-Carballo has failed to put forward any evidence or
arguments that would cast doubt on the pleas validity, and so any appeal on these
grounds would be frivolous.
We also fail to see any non-frivolous grounds for appeal as to the
reasonableness of the sentence. We review a district courts imposition of a
below-Guidelines sentence for abuse of discretion. See Gall v. United States, 128
S. Ct. 586, 597 (2007); United States v. Smart, No. 06-6120, slip op. at 11 (10th
Cir. Mar. 4, 2008). In this case, the district court clearly understood and
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Neil M. Gorsuch
Circuit Judge
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