                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                   February 18, 2009
                                 TENTH CIRCUIT
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 08-8035
          v.                                            (D. Wyoming)
 COURTNEY M. IRVINE,                            (D.C. No. 2:07-CR-255-ABJ-2)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before BRISCOE, MURPHY, and HARTZ, 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.

      Courtney Irvine was indicted on a single count of conspiracy with intent to

distribute 500 grams or more of a mixture or substance containing a detectable

amount of methamphetamine. 21 U.S.C. §§ 846 & 841(a)(1), (b)(1)(A). Shortly


      *
        This order and judgment is not binding precedent except under the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.
thereafter, the government filed an information pursuant to 21 U.S.C. § 851,

noting Irvine was subject to a mandatory life sentence in light of his two previous

felony drug convictions. Irvine and the government entered into a plea agreement

in which Irvine agreed to plead guilty to the lesser included offense of conspiracy

with intent to distribute fifty grams or more of a mixture or substance containing

a detectable amount of methamphetamine. 21 U.S.C. §§ 846 & 841(a)(1),

(b)(1)(B). In exchange for Irvine’s guilty plea, the government agreed to

withdraw its § 851 information, thereby eliminating the possibility Irvine would

be subject to a minimum mandatory sentence. The district court accepted the

guilty plea and sentenced Irvine to seventy-seven months’ imprisonment, a

sentence at the bottom of the advisory Guidelines range. Irvine appeals,

contending his sentence is procedurally unreasonable.

      Irvine’s counsel has filed a brief pursuant to Anders v. California, 386 U.S.

738 (1967), advising the court that Irvine’s appeal is wholly frivolous.

Accordingly, counsel seeks permission to withdraw. Pursuant to 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. We “must then conduct a full examination of the record to determine whether

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defendant’s claims are wholly frivolous.” Id. Irvine was given notice of

counsel’s Anders brief and motion to withdraw and filed a response thereto. The

government declined to file a brief. Our resolution of the case is, therefore, based

on counsel’s Anders brief, Irvine’s response, and this court’s independent review

of the record.

      In arriving at a sentencing range under the advisory Sentencing Guidelines,

the district court adjusted Irvine’s offense level downward two levels for Irvine’s

acceptance of responsibility. U.S.S.G. § 3E1.1(a). The district court refused,

however, to adjust Irvine’s offense level downward an additional level pursuant to

U.S.S.G. § 3E1.1(b) because Irvine entered his guilty plea on the day his case

went to trial. Furthermore, noting he pleaded guilty to a significantly less serious

offense pursuant to a plea agreement, the district court refused to adjust Irvine’s

offense level downward on the basis he was a minor participant in the criminal

activity. Id. § 3B1.2. Finally, after engaging in a long and thoughtful colloquy

with Irvine addressing all relevant sentencing considerations, the district court

concluded a sentence at the bottom the advisory Guidelines range was appropriate

in light of the factors set out in 18 U.S.C. § 3553(a). Accordingly, the district

court sentenced Irvine to seventy-seven months’ imprisonment.

      In her Anders brief, counsel notes that Irvine believes the district court

erred in refusing to adjust his offense level downward an additional level for

acceptance of responsibility and an additional two levels because he was a minor

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participant in the criminal activity. Counsel asserts these contentions are

frivolous and further asserts the sentence imposed by the district court is

procedurally reasonable as it is based on a properly calculated advisory

Guidelines range. See United States v. Ellis, 525 F.3d 960, 964 (10th Cir. 2008)

(holding that for a sentence to be procedurally reasonable, a district court must

consider the properly calculated advisory Guidelines range). In his submission,

Irvine contends that both issues identified in counsel’s brief are meritorious and,

thus, this court should deny counsel’s motion to withdraw and order her to fully

brief the issues. Because counsel is correct that each of the issues Irvine seeks to

raise is frivolous, and because our independent review of the record reveals no

potentially meritorious issues, we grant her motion to withdraw and dismiss this

appeal.

      Irvine’s contention the district court should have reduced his offense level

one additional level for acceptance of responsibility pursuant to § 3E1.1(b) is

frivolous. The additional one-level adjustment for acceptance of responsibility

set out in § 3E1.1(b) is only available “upon motion of the government stating

that the defendant has assisted authorities in the investigation or prosecution of

his own misconduct by timely notifying authorities of his intention to enter a plea

of guilty, thereby permitting the government to avoid preparing for trial.”

U.S.S.G. § 3E1.1(b); see also id. § 3E1.1(b) app. n.6 (“Because the Government

is in the best position to determine whether the defendant has assisted authorities

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in a manner that avoids preparing for trial, an adjustment under subsection (b)

may only be granted upon a formal motion by the Government at the time of

sentencing.”). Here the government affirmatively objected to Irvine’s request for

a further one-level downward adjustment pursuant to § 3E1.1(b) because Irvine

entered his guilty plea on the first day of trial. Thus, the district correctly denied

Irvine’s request for the adjustment and his assertion to the contrary is legally

frivolous.

      Irvine’s contention the district court erred in refusing to treat him as a

minor participant for purposes of § 3B1.2(b) is likewise frivolous. As noted

above, as part of his plea agreement, Irvine was allowed to plead guilty to a lesser

included offense. Furthermore, in exchange for Irvine’s guilty plea, the

government withdrew the information it filed pursuant to § 851. This had the

effect of freeing Irvine from a lengthy minimum mandatory sentence. 21 U.S.C.

§ 841(b)(1)(A) (potential minimum mandatory life sentence); id. § 841(b)(1)(B)

(potential minimum mandatory sentence of ten years’ imprisonment). It was for

this very reason that the district court refused to adjust Irvine’s offense level

downward two levels pursuant to § 3B1.2(b). The district court’s decision is

perfectly consistent with the commentary to § 3B1.2, which provides that when a

defendant is allowed to plead guilty to an offense significantly less serious than

his actual criminal conduct, a reduction under § 3B1.2 is generally not warranted.

U.S.S.G. § 3B1.2 app. n.3(B).

                                          -5-
      Pursuant to the mandate set out in Anders, this court has undertaken an

independent review of the entire record in this case. That review reveals no

potentially meritorious issues. Accordingly, we GRANT counsel’s request to

withdraw and DISMISS this appeal.

                                              ENTERED FOR THE COURT


                                              Michael R. Murphy
                                              Circuit Judge




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