Home   Federal Cases   State Cases   News   Search   Cart   Log In 
 
Search 591,342 Cases and Articles on TJV!
 
Federal Case Categories







Lawyer May Withdraw if Appeal Is Wholly Frivolous

U.S. v. Tapia-Parra, Case No. 09-1070 (C.A. 10, Nov. 24, 2009)

Omar Tapia-Parra pled guilty to a charge of illegal re-entry into the United States after previous deportation, in violation of 8 U.S.C. §§ 1326(a) & (b)(2), and was sentenced to 36 months’ imprisonment. Although his sentence was five months below the recommended Guidelines range for his offense, Mr. Tapia-Parra now appeals that sentence. His attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), advising us that he discerns no colorable basis for the appeal and seeking leave to withdraw. After careful review, we agree with counsel’s assessment of the appellate arguments available to his client and thus grant the motion to withdraw and dismiss the appeal.

The Supreme Court’s decision in Anders authorizes a defendant’s lawyer to seek permission to withdraw from an appeal if, “after a conscientious examination,” the lawyer finds the appeal “wholly frivolous.” 386 U.S. at 744. Invoking Anders requires the lawyer to “submit a brief to the client and the appellate court indicating any potential appealable issues based on the record,” and the client has an opportunity to respond to his attorney’s arguments. United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005) (citing Anders, 386 U.S. at 744). In evaluating the attorney’s request, we are required to “conduct a full examination of the record to determine whether [the] defendant’s claims are wholly frivolous.” Id. If they are, we may grant counsel’s motion to withdraw and dismiss the appeal. Id.
 

 

Jurisdiction: U.S. Court of Appeals, Tenth Circuit
Circuit Court Judge(s)
Neil Gorsuch
Deanell Tacha
Timothy Tymkovich

 
Appellant Lawyer(s) Appellant Law Firm(s)
Dean Neuwirth Dean Neuwirth PC
Omar Tapia-Parra Pro Se

 
Appellee Lawyer(s) Appellee Law Firm(s)
Michael Conrad Johnson US Attorney's Office

 

CUSTOM EMAIL ALERTS!

With your FREE registration, you can select an unlimited number of Alert categories for daily, weekly or monthly deliveries of the Federal and State Cases most relevant
to you!

Click Here to sign up.

 



Click the maroon box above for a formatted PDF of the decision.
states after previous deportation, in violation of 8 u.s.c. 1326(a) & (b)(2), (10th cir. 2008). second, a defendant can argue that the sentence is substantively opinions, this court has granted anders motions in nearly identical appeals. see, order and judgment is not binding precedent except under the doctrines of law of and dismiss this appeal. under either type of attack, mr. tapia-parra cannot plausibly argue that the tapia-para, united states court of appeals calculate the guidelines sentence, treats the guidelines as mandatory, fails to 51 months). 2007) (dismissing appeal challenging 36-month sentence imposed pursuant to tapia-parra has no grounds to argue that his plea agreement was invalid. his tenth circuit clerk of court examination of the record to determine whether [the] defendant's claims are record turned up any other potentially meritorious issues. before tacha, tymkovich, and gorsuch, circuit judges. dismissible, and virtually all will be dismissed"). filed circuit judge the supreme court's decision in anders authorizes a defendant's lawyer to the recommended guidelines range of 41-51 months, did not treat that range as - 5 - determined unanimously that oral argument would not materially assist the e.g., united states v. hernandez-de jesus, 216 f. app'x 737, 739 (10th cir. as to the three potential arguments identified by counsel, we agree that 34.1(g). the case is therefore ordered submitted without oral argument. this five-month downward departure reflected a considered balancing of the november 24, 2009 * entered for the court inadequately explains the sentence." united states v. haley, 529 f.3d 1308, 1311 tenth circuit ineffective assistance claims brought on direct appeal are "presumptively wholly frivolous because the district court's sentence was not an abuse of no. 09-1070 neil m. gorsuch omar tapia-parra, a/k/a omar and dismiss the appeal. id. each is unavailing. turning first to the district court's sentencing decision, appeal -- that the plea was invalid or that counsel was ineffective -- are equally for the appeal and seeking leave to withdraw. after careful review, we agree with now appeals that sentence. his attorney has filed a brief pursuant to anders v. plaintiff-appellee, consider the [18 u.s.c.] 3553(a) factors, relies on clearly erroneous facts, or (d.c. no. 1:08-cr-00094-wdm-1) states v. galloway, 56 f.3d 1239, 1240 (10th cir. 1995) (en banc) (stating that invoking anders requires the lawyer to "submit a brief to the client and the the only other two potential bases for appeal also lack merit. first, mr. previous deportation and illegal re-entry provide a clear factual basis for the plea. parra about the consequences of his plea. and the record indicates that his examination," the lawyer finds the appeal "wholly frivolous." 386 u.s. at 744. defendant's circumstances, including his family's desire to have him back in defendant-appellant. - 3 - and the client has an opportunity to respond to his attorney's arguments. united discretion. id. persuasive value consistent with fed. r. app. p. 32.1 and 10th cir. r. 32.1. required under 18 u.s.c. 3553(a). indeed, in numerous other unpublished indication from the record or any party that this analysis was deficient in any acceptance of the plea was voluntary, knowing, and intelligent. see united states for these reasons, we agree with mr. tapia-parra's lawyer that there is no united states court of appeals identified, any additional issues for appeal, and neither has our own review of the counsel correctly notes that a defendant can attack the reasonableness of his way. second, the sentence was substantively reasonable. the district court's district court abused its discretion by imposing a 36-month prison sentence. first, v. guilty plea for illegal re-entry, when the recommended guidelines range was 41- omar tapia-parra pled guilty to a charge of illegal re-entry into the united california, 386 u.s. 738 (1967), advising us that he discerns no colorable basis tapia-parra might seek to challenge his counsel's performance as ineffective, he grant the motion to withdraw and dismiss the appeal. united states of america, 744). in evaluating the attorney's request, we are required to "conduct a full counsel's assessment of the appellate arguments available to his client and thus must do so through collateral proceedings rather than direct appeal. see united the sentence was procedurally reasonable. the district court correctly calculated elisabeth a. shumaker - 4 - meritless. mr. tapia-parra was given the opportunity to identify, but has not order and judgment* 3553(a) factors." id. we review both types of challenges for an abuse of seek permission to withdraw from an appeal if, "after a conscientious the case, res judicata and collateral estoppel. it may be cited, however, for its mandatory, considered the 3553(a) factors, and applied those factors in months below the recommended guidelines range for his offense, mr. tapia-parra discretion. in addition, the attorney argues that the two other potential bases for in his anders brief, mr. tapia-parra's attorney argues that this appeal is sentence in two ways. first, a defendant can argue that the sentence is wholly frivolous." id. if they are, we may grant counsel's motion to withdraw unreasonable "given the totality of the circumstances in light of the 18 u.s.c. mexico as soon as possible, with the government's interest in deterring future and was sentenced to 36 months' imprisonment. although his sentence was five appellate court indicating any potential appealable issues based on the record," procedurally unreasonable "if the district court incorrectly calculates or fails to * * * after examining appellant's brief and the appellate record, this panel has illegal re-entry. consequently, the court's reasoning comported with the analysis v. asch, 207 f.3d 1238, 1242 (10th cir. 2000). second, to the extent that mr. the district court properly conducted the plea hearing and informed mr. tapia- (d. colo.) colorable basis for appeal. accordingly, we grant counsel's motion to withdraw determination of this appeal. see fed. r. app. p. 34(a)(2) and 10th cir. r. states v. calderon, 428 f.3d 928, 930 (10th cir. 2005) (citing anders, 386 u.s. at imposing a sentence five months lower than the recommended range. there is no - 2 -


All Content © 2007-2012 The Judicial View, L.L.C. All Right Reserved.
About The Judicial View ®  | Privacy Policy   |  Terms of Use   |  Contact Us  |  Advertise