                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    June 7, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT


 UNITED STATES OF AMERICA,
               Plaintiff-Appellee,                       No. 09-1127
          v.                                   (D.C. No. 08-CR-00245-WYD-1)
 HUMBERTO FIERRO-RASCON,                                   (D. Colo.)
 a/k/a Fernando Ramirez, a/k/a
 Humberto Fierro, a/k/a/ Humberto
 Aragon-Rascon,
               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before KELLY, McKAY, and LUCERO, Circuit Judges.


      After examining defense counsel’s Anders brief and the 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). This case is therefore ordered submitted without oral argument.

      Appellant Humberto Fierro-Rascon, a federal prisoner represented by

counsel, pled guilty to unlawfully reentering the country as a deported alien

previously convicted of an aggravated felony. The district court denied


      *
        This order and judgment is not binding precedent, except under the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.
Appellant’s motion for a downward departure from the sentencing guidelines and

imposed a sentence of thirty-three months, at the bottom of the applicable

guideline range. Appellant then filed a pro se notice of appeal and requested the

appointment of counsel for his appeal. On appeal, appointed counsel has filed an

Anders brief and motion to withdraw as counsel. See Anders v. California, 386

U.S. 738 (1967). Counsel concludes there are no potentially meritorious issues

that may be raised on appeal.

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

before us. See id. at 744. We agree with defense counsel that any potential

issues regarding the effectiveness of Appellant’s counsel should be raised in

collateral proceedings, see United States v. Brooks, 438 F.3d 1231, 1242 (10th

Cir. 2006), and the record reveals no other basis for an attack on the entry of

Appellant’s plea of guilty. As for the sentence imposed, the record indicates the

district court was aware of its discretion to depart downward but determined a

downward departure was not warranted in this case. Under these circumstances,

we lack jurisdiction to review the court’s denial of Appellant’s motion for a

downward departure. See United States v. Sierra-Castillo, 405 F.3d 932, 936

(10th Cir. 2005). The record also reveals no procedural defects in the district

court’s calculation of the applicable guideline range. Finally, as to the

substantive reasonableness of Appellant’s sentence, we agree with defense

counsel that the record contains nothing that would rebut the presumption of

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reasonableness attached to Appellant’s within-guidelines sentence. See United

States v. Haley, 529 F.3d 1308, 1311 (10th Cir. 2008).

      After thoroughly reviewing the record on appeal, we conclude that

Appellant has no non-frivolous grounds to raise on appeal. We therefore GRANT

counsel’s motion to withdraw and DISMISS the appeal.

                                              Entered for the Court



                                              Monroe G. McKay
                                              Circuit Judge




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