                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                     June 5, 2009
                    UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                 TENTH CIRCUIT                       Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                       No. 08-2160
          v.                                            (D. New Mexico)
 CESAR ARMANDO ORTIZ-LICANO,                    (D.C. No. 2:07-CR-01762-LH-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.



      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). The case is

therefore ordered submitted without oral argument.

      Cesar Armando Ortiz-Licano was apprehended by a border patrol agent at a

gas station/rest area in southern New Mexico. He admitted he was a citizen of

Mexico illegally present in the United States. Prior to this offense, Ortiz-Licano


      *
        This order and judgment is not binding precedent except under the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.
had a previous conviction in Arizona state court for Possession of Dangerous

Drugs for Sale. After that conviction, he was deported.

      Ortiz-Licano pleaded guilty to Re-entry of a Deported Alien Previously

Convicted of an Aggravated Felony in violation of 8 U.S.C. § 1326(a)-(b). The

presentence report (“PSR”) indicated Ortiz-Licano had two other drug-related

convictions and eleven other arrests and had been deported four times. The PSR

calculated his advisory Guidelines range by starting with a base offense level of 8

pursuant to U.S.S.G. § 2L1.2(a), applying a 12-level increase for having been

deported following a drug trafficking offense pursuant to § 2L1.2(b)(1)(B), and

applying a 3-level decrease for acceptance of responsibility for a total offense

level of 17. The PSR calculated his criminal history category by assigning him 2

points each under § 4A1.1(b) for two of his drug convictions, one of which was

also the predicate drug trafficking offense used to increase his offense level. He

had a total of 4 criminal history points, so his criminal history category was III,

giving him an advisory Guidelines range of 30-37 months’ imprisonment.

      Prior to sentencing, Ortiz-Licano argued for a downward departure on the

grounds that the same conviction was “double-counted” to increase his offense

level and his criminal history category. He contended this resulted in over-

representation of his criminal history. He also requested a sentence below the

Guidelines range based on the 18 U.S.C. § 3553(a) factors. At sentencing, the

district court adopted the relevant findings in the PSR, rejected Ortiz-Licano’s

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request for a downward departure, and sentenced him to 30 months’

imprisonment, the bottom of the Guidelines range. Ortiz-Licano did not object to

the sentence after it was imposed, but filed a notice of appeal. His counsel filed a

brief in accordance with Anders v. California, 386 U.S. 738 (1968), alleging he

could find no meritorious basis for appeal and simultaneously moving to

withdraw as counsel. Counsel also indicated Ortiz-Licano believes the sentence

imposed is unfair and too long for his conviction.

      Under Anders, this court must conduct an independent review of the record

to determine whether there is a meritorious basis for appeal. 386 U.S. at 744.

After comprehensively reviewing the record, this court is satisfied there are no

meritorious issues to appeal. The district court did not err in refusing Ortiz-

Licano’s request for a downward departure. The commentary to the Guidelines

and Circuit precedent make clear that the same crime can be both the predicate

felony for the § 2L1.2(b) offense level enhancement and one of the crimes

considered when computing the criminal history category. U.S.S.G. § 2L1.2 cmt.

n.6; United States v. Florentino, 922 F.2d 1443, 1446 (10th Cir. 1990). The

district court, noting Ortiz-Licano’s long string of arrests, concluded the criminal

history category accurately reflected his level of prior criminal conduct. Nor is

there any basis in the record to conclude the district court’s sentence was

unreasonable. The advisory Guidelines range was accurately computed and the

district court considered the § 3553(a) factors prior to imposing sentence. It

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decided to impose a within-Guidelines sentence after noting Ortiz-Licano’s prior

criminal behavior and his history of repeated illegal entry into the United States.

This decision, supported by facts present in the PSR, was not an abuse of

discretion.

      Because after an independent review of the record this court has not

identified any meritorious basis for appeal, the appeal is dismissed and counsel’s

motion to withdraw is granted.

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




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