USA v. Jose Pequeno-Garcia

Filing

UNPUBLISHED OPINION FILED.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]

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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).

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