USA v. Jose Pequeno-Garcia


UNPUBLISHED OPINION FILED. [16-50103 Dismissed as Frivolous] Judge: CDK, Judge: JLD, Judge: GJC. Mandate pull date is 11/03/2016 for Appellant Jose Pequeno-Garcia; denying motion to appoint counsel filed by Appellant Mr. Jose Pequeno-Garcia [8233797-2]; granting motion to withdraw as counsel filed by Mr. Ricardo Guzman [8222072-2]; denying as unnecessary motion to extend time to file appellant's brief filed by Mr. Ricardo Guzman [8222072-3] [16-50103]

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Case: 16-50103 Document: 00513716719 Page: 1 Date Filed: 10/13/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 16-50103 Summary Calendar FILED October 13, 2016 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. JOSE PEQUENO-GARCIA, also known as Jose Tomas Pequeno-Garcia, Defendant-Appellant Appeals from the United States District Court for the Western District of Texas USDC No. 6:15-CR-161-1 Before KING, DENNIS, and COSTA, Circuit Judges. PER CURIAM: * The attorney appointed to represent Jose Pequeno-Garcia has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). Counsel also moves to extend the time for filing an amended brief. PequenoGarcia has filed a response to the Anders brief and moves for the appointment of substitute counsel. We have reviewed counsel’s Anders brief and the Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * Case: 16-50103 Document: 00513716719 Page: 2 Date Filed: 10/13/2016 No. 16-50103 relevant portions of the record reflected therein, as well as Pequeno-Garcia’s response. We concur with counsel’s assessment that the appeal presents no nonfrivolous issue for appellate review. In his response, Pequeno-Garcia first argues that his prior deportation was unlawful due to defects in the removal proceedings and therefore could not serve as a predicate for his instant illegal reentry offense. Such a challenge does not present a nonfrivolous issue for appeal because it has been waived by Pequeno-Garcia’s voluntary and unconditional guilty plea. See United States v. Daughenbaugh, 549 F.3d 1010, 1012 (5th Cir. 2008). Pequeno-Garcia’s remaining arguments challenging the calculation of his criminal history score and the substantive reasonableness of his sentence also do not raise a nonfrivolous appellate issue. See U.S.S.G. § 4A1.2(e)(1); U.S.S.G. § 1B1.11(a); United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009). Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel’s motion to extend the time for filing an amended brief is DENIED AS UNNECESSARY, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5TH CIR. R. 42.2. Pequeno-Garcia’s motion for the appointment of substitute counsel is DENIED. See United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998). 2

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