                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                            August 3, 2007
                                     TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                             Clerk of Court

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

           Plaintiff - Appellee,

 v.                                                         No. 06-2263
                                                             (D . N.M .)
 JULIAN FREGO SO-RO DR IGU EZ,                       (D.Ct. No. CR-05-2458-JC)

           Defendant - Appellant.



                                   OR DER & JUDGM ENT *


Before KELLY, M U RPH Y, and O’BRIEN, 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.

       Julian Fregoso-Rodriguez (also known as M iguel Barragan-Ledemza) pled

guilty pursuant to a plea agreement to a single count 1 of conspiracy to possess

with intent to distribute more than one kilogram of heroin in violation of 21

       *
        This order and judgment is not binding precedent except under the doctrines of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.
       1
           The Superseding Indictment alleged sixteen counts.
U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A). As part of the plea agreement, the

government agreed to a reduction in his offense level for acceptance of

responsibility and conceded Fregoso-Rodriguez may also be eligible for a “safety-

valve” reduction, allowing him to avoid the statutory mandatory minimum

sentence of ten years imprisonment for his offense. See USSG §§ 3E1.1, 5C1.2

and 21 U.S.C. § 841(b)(1)(A). Based on a total offense level of twenty-nine and a

criminal history category of I, Fregoso-Rodriguez’s advisory sentencing

guidelines range w as eighty-seven to one hundred eight months imprisonment. A t

sentencing, Fregoso-Rodriguez asked the district court to sentence him to eighty-

seven months imprisonment. The district court agreed. It sentenced him to

eighty-seven months imprisonment and recommended removal proceedings begin

while he served his sentence.

      Fregoso-Rodriguez’s counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), advising the court that this appeal is wholly

frivolous. Accordingly, counsel also seeks permission to withdraw. Under

Anders, counsel may “request permission to withdraw where counsel

conscientiously examines a case and determines that any appeal would be wholly

frivolous.” United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005).

Counsel is required to submit an appellate brief “indicating any potential

appealable issues . . . .” Id. Once notified of counsel's brief, the defendant may

then submit additional arguments to this Court. Id. W e “must then conduct a full

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examination of the record to determine whether defendant’s claims are wholly

frivolous.” Id.

       Fregoso-Rodriguez was given notice of the Anders brief and counsel’s

request to withdraw, but he did not file a brief or other pleadings. 2 Our resolution

of the case is, therefore, based on counsel's Anders brief, the government's

response, and our independent review of the record.

       In his Anders brief, counsel notes Fregoso-Rodriguez appeals from his

sentence on the simple ground that it is too long and correctly identifies our plain

error standard of review because no objection was lodged below. Counsel further

asserts that such an appeal is frivolous because the sentence imposed is within a

properly calculated guideline range, the court considered the 18 U.S.C. § 3553(f)

factors, and the sentence received was the one requested by Fregoso-Rodriguez.

Our independent review of the record demonstrates counsel is correct in asserting

this appeal is frivolous. The district court imposed a sentence at the bottom of

the properly calculated advisory guidelines range. Therefore, the sentence is




       2
         Anders holds “if counsel finds [his client’s] case to be wholly frivolous, after a
conscientious examination of it, he should so advise the court and request permission to
withdraw.” 386 U.S. at 744. Counsel must submit to both the court and his client a “brief
referring to anything in the record that might arguably support the appeal.” Id. The client
may then “raise any points he chooses.” Id. Thereafter, the court must completely
examine all the proceedings to determine the frivolity of the appeal. “If it so finds it may
grant counsel’s request to withdraw and dismiss the appeal . . . . [I]f it finds any of the
legal points arguable on their merits (and therefore not frivolous) it must, prior to
decision, afford the indigent the assistance of counsel to argue the appeal.” Id.

                                            -3-
presumptively reasonable. United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir.

2006) (sentences w ithin a properly calculated guideline range are presumptively

reasonable). A complete review of the record reveals no facts or circumstances

that would render Fregoso-Rodriguez’s sentence unreasonable in light of the other

sentencing factors set out in § 3553(a). See id. Thus, the record reveals no

claims arguable on their merits. Counsel's request to w ithdraw is GRANTED and

this appeal is DISM ISSED.

                                       Entered by the C ourt:

                                       Terrence L. O ’Brien
                                       United States Circuit Judge




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