                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                      November 15, 2005
                                    TENTH CIRCUIT
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
                                                        No. 05-1046
 vs.                                              (D.C. No. 04-CR-255-N)
                                                         (D. Colo.)
 JESUS GARCIA, also known as Jorge,

           Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges. **


       Defendant-Appellant Jesus Garcia pled guilty to possession with intent to

distribute more than 50 grams of a mixture and substance containing a detectable

amount of methamphetamine and aiding and abetting. 21 U.S.C. §§ 841(a)(1),

(b)(1)(B), & 18 U.S.C. § 2. In pleading guilty, he stipulated that his sentence

would be determined by application of the Sentencing Guidelines,

       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
notwithstanding the Supreme Court’s decision in Blakely v. Washington, 542 U.S.

296 (2004). In exchange for the plea, the government agreed to recommend a

safety valve adjustment given the statutory mandatory minimum, a one-level

reduction for acceptance of responsibility, and sentencing at the bottom of the

applicable guideline range. I R. Doc. 43 at 2-3. The parties stipulated to the

facts concerning the offense. Ultimately Mr. Garcia’s adjusted offense level was

23 with a criminal history category of I resulting in a Guideline range of 46-57

months imprisonment. Mr. Garcia’s counsel agreed that the range was

reasonable. II R. 3.

      The district court sentenced Mr. Garcia to 46 months, with five years of

supervised release. In imposing the minimum term specified by the Guidelines,

the district court expressly stated that it was treating the Guidelines as advisory

and sentence was imposed after consideration of the factors contained in 18

U.S.C. § 3553(a). II R. 7; see United States v. Booker, 125 S. Ct. 738, 765

(2005). In his opening brief, Mr. Garcia argued that the sentence was excessive

and constituted plain error because the court applied the Guidelines in a

mandatory fashion. Aplt. Br. at 3-6. The government responded, pointing out

that the court applied the Guidelines in an advisory fashion. In reply, Mr.

Garcia’s counsel submitted a brief pursuant to Anders v. California, 386 U.S. 738

(1967), conceding the points argued in the opening brief. Aplt. Reply Br. at 1-2.


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Mr. Garcia’s counsel sent Mr. Garcia the briefs and a letter outlining her position.

She advised him that he had 30 days to address the court of appeals with any error

he deemed to have merit. Counsel also sought to withdraw. See 10th Cir. R.

46.4(B). Apparently in response to notice, Mr. Garcia requested an extension of

time to file a response to the Anders reply brief, and the court extended the

deadline until August 8, 2005. Mr. Garcia has not responded. Our jurisdiction

arises under 28 U.S.C. 1291 and 18 U.S.C. § 3742(a).

      Mr. Garcia raised no objection regarding sentencing and as such, we review

for plain error. See United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th

Cir. 2005) (en banc). The court sentenced Mr. Garcia at the bottom of the

Guideline range on stipulated facts where the court treated the Guidelines as

advisory and counsel conceded that the sentence was reasonable. II R. at 3.

Under such circumstances, no colorable argument can be made that the district

court treated the Guidelines as mandatory or the sentence is unreasonable against

a backdrop of the § 3553(a) factors.

      Accordingly, we DISMISS this appeal as frivolous and GRANT counsel’s

motion to withdraw.


                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge

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