                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                      UNITED STATES CO URT O F APPEALS
                                                                 October 18, 2007
                                                     Elisabeth A. Shumaker
                               TENTH CIRCUIT             Clerk of Court
                          __________________________

 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                         No. 07-8024
 v.                                              (D.Ct. No. 06-CR-189–ABJ)
                                                          (D . W yo.)
 TIM OTHY W ESAW ,

          Defendant-Appellant.
                        ____________________________

                                OR D ER AND JUDGM ENT *


Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior
Circuit Judges.




      After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



      Appellant Timothy W esaw pled guilty to one count of possession of



      *
         This order and judgment is not binding precedent except under the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.
material containing an image of child pornography transported in interstate

commerce by any means, including a computer, in violation of 18 U.S.C.

§ 2252A(a)(5)(B) and (b)(2). The district court sentenced M r. W esaw to the low

end of the advisory United States Sentencing Guidelines (“Guidelines” or

“U.S.S.G.”) range of forty-one to fifty-one months imprisonment, as well as five

years supervised release. W hile M r. W esaw appeals his conviction and sentence,

his attorney has filed an Anders brief and a motion to withdraw as counsel. See

Anders v. California, 386 U.S. 738, 744 (1967). For the reasons set forth

hereafter, w e grant counsel’s motion to withdraw and dismiss this appeal.



                                   I. Background

      Pursuant to a plea agreement, M r. W esaw pled guilty to a one-count

indictment for possessing child pornography in violation of 18 U.S.C.

§ 2252A(a)(5)(B) and (b)(2). The district court held a plea hearing, during which

it thoroughly and comprehensively questioned M r. W esaw about his guilty plea.

In response, M r. W esaw explicitly confirmed he had read the plea agreement,

discussed it w ith counsel, and signed it voluntarily and of his own free will. H e

also stated he understood the offense for which he was charged, the maximum

sentence and other possible sentencing ramifications related to the offense, 1 and

      1
       Because the offense occurred prior to enactment of the Prosecutorial
Remedies and Other Tools to end the Exploitation of Children Today Act of 2003
                                                                   (continued...)

                                          -2-
the rights he was giving up by pleading guilty, including his right to a speedy

public jury trial. He further admitted he was guilty of possessing child

pornography by downloading images to his computer by means of interstate

telephone lines.



      After the district court accepted M r. W esaw’s guilty plea, the probation

officer prepared a presentence report calculating his sentence under the applicable

Guidelines. The presentence report set his base offense level at seventeen,

pursuant to the applicable 2003 version of U.S.S.G. § 2G2.2(a), and increased his

base level: 1) two levels pursuant to § 2G2.2(b)(1) because the child pornography

involved prepubescent minors under age twelve; 2) four levels under

§ 2G2.2(b)(3) given the images depicted sadistic or masochistic conduct; and 3)

two levels under § 2G2.2(b)(5) because his offense involved the use of a

computer. It also reduced the offense level by three levels for acceptance of

responsibility, resulting in a total offense level of twenty-two. This, together with

a criminal history category of I, resulted in an advisory sentencing range of forty-

one to fifty-one months imprisonment.




      1
       (...continued)
(PROTECT Act), Pub. L. No. 108-21, 117 Stat. 650 (codified in scattered sections
of 18 and 42 U.S.C.), its provisions did not apply to M r. W esaw, resulting in a
statutory maximum term of only five years imprisonment under 18 U.S.C.
§ 2252A (2003).

                                         -3-
      Although M r. W esaw filed miscellaneous objections to some of the factual

findings in the presentence report, those objections w ere withdrawn prior to

sentencing. However, M r. W esaw did reserve the right to raise issues related to

receiving a reasonable sentence under the sentencing factors in 18 U.S.C.

§ 3553(a).



      During the sentencing hearing, discussion occurred concerning M r.

W esaw’s mental health, including prior alcohol abuse, depression, and treatment

for bipolar disorder. In addition, three family members testified on M r. W esaw’s

behalf. Following their testimony, M r. W esaw’s counsel conceded she had found

no issue for a departure but asked the district court to consider a variance under

the § 3553(a) factors in conjunction with: 1) M r. W esaw’s exemplary conduct

during his home confinement in which he voluntarily placed restrictions on

himself; 2) his alcoholism and prior treatment for bipolar disorder; 3) the fact he

raised his two sons on his own; and 4) the fact his last criminal offense occurred

seven years prior to the instant offense. M r. W esaw then testified on his own

behalf, articulating his remorse for his actions and asking for supervised release

rather than a term of imprisonment. In response, the government requested a

sentence within the advisory Guidelines range of forty-one to fifty-one months

imprisonment, noting the seriousness of the offense, given M r. W esaw

downloaded over twenty movie files and eighty-seven still or JPEG images

                                         -4-
involving child pornography, and pointing out his need for vocational training and

mental health and drug counseling.



      In sentencing M r. W esaw, the district court explicitly stated it considered

all the factors enumerated in 18 U.S.C. § 3553(a), together with the circumstances

presented, including M r. W esaw’s alcoholism; pornographic addiction tendencies,

including the many, many hours it took to download the materials found on his

computer; his honesty, acceptance of responsibility, admitted shame, and self-

imposed sequestration after the instant offense; his difficult family circumstances

growing up and in raising his children on his own; the discrimination he

experienced as a Native American; and his need for mental health treatment.

Based on these considerations, the district court determined a sentence at the low

end of the advisory sentencing range was appropriate and reasonable and

sentenced M r. W esaw to forty-one months imprisonment and five years

supervised release.



      After M r. W esaw filed a timely notice of appeal, his appointed counsel

filed an Anders appeal brief, explaining a review of the record reveals no

nonfrivolous issues exist to support an appeal in this case and moving for an order

permitting withdrawal as counsel. See Anders, 386 U.S. at 744. In support,

counsel suggests no irregularities occurred in the guilty plea or sentencing and

                                         -5-
points out M r. W esaw was fully advised and understood his rights and the

ramifications in pleading guilty, and the district court, after considering the

§ 3553(a) factors and properly calculating the advisory Guidelines range,

sentenced him at the low end of that range to forty-one months imprisonment.

Pursuant to Anders, this court gave M r. W esaw an opportunity to respond to his

counsel’s Anders brief. Id. However, M r. W esaw failed to file a response.



                                    II. Discussion

      As required by Anders, we have conducted a full examination of the record

before us. See 386 U.S. at 744. Our independent review of the plea transcript

supports beyond any doubt our conclusion M r. W esaw knowingly, intelligently,

and voluntarily entered his plea of guilty. Thus, based on the record before us,

we cannot say M r. W esaw’s guilty plea was involuntary for the purpose of

challenging his conviction. As to his sentence of forty-one months imprisonment

and five years supervised release, we review for reasonableness the sentence’s

length, as guided by the factors in 18 U.S.C. § 3553(a). See United States v.

Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006) (per curiam). Having made such a

review, we find no nonfrivolous basis for challenging the sentence imposed. The

district court in this case explicitly considered the factors in § 3553(a), and a

presumption of reasonableness attaches to a sentence, like here, which is w ithin

the correctly-calculated Guidelines range, which M r. W esaw has not rebutted.

                                          -6-
See id. at 1053-55.



                                 III. Conclusion

      For these reasons, no meritorious appellate issue exists. Accordingly, w e

G R A N T counsel’s motion to withdraw and DISM ISS M r. W esaw’s appeal.



                                      Entered by the C ourt:

                                      W ADE BRO RBY
                                      United States Circuit Judge




                                        -7-
