                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    May 24, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                      No. 10-1415
 JERRYCA P. CHAVEZ, a/k/a Jerryca             (D.C. No. 1:10-CR-00047-CMA-1)
 Baros, a/k/a Misty Hetzel,                               (D. Colo.)

          Defendant-Appellant.



                                ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, ANDERSON and MURPHY, 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, submitted without oral argument.

      Jerryca Chavez appeals from her sentence of 60 months’ imprisonment for



      *
        This order and judgment is not binding precedent, except under the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.
pleading guilty to one count of wire fraud and one count of aggravated identity

theft. Chavez’s appointed counsel filed an Anders brief (1) asserting that there

are no non-frivolous grounds upon which Chavez can appeal the district court’s

sentence and (2) moving to withdraw as counsel. See Anders v. California, 386

U.S. 738 (1967). Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we grant

counsel’s motion to withdraw and dismiss this appeal.

                                          I

      In April 2010, Chavez pled guilty to one count of wire fraud in violation of

18 U.S.C. § 1343 and one count of aggravated identity theft in violation of 18

U.S.C. § 1028A(a)(1). Based on an offense level of 18 and a criminal history

category of III, the guideline range for Chavez’s wire fraud conviction was 33-41

months. ROA Vol. 3, at 23. In addition, pursuant to 18 U.S.C. § 1028A, Chavez

was required to serve a consecutive two-year sentence for her aggravated identity

theft conviction. Id.

      At sentencing, Chavez neither challenged the facts contained in the pre-

sentence report nor objected to the calculations used to arrive at the advisory

guideline range. Chavez did, however, ask the district court to vary downward on

her wire fraud conviction, requesting that it sentence to her to 18 months, rather

than to a sentence within the 33-41 month guideline range. The prosecution

opposed Chavez’s request. After hearing the parties’ arguments and testimony

from an FBI agent who described the impact of Chavez’s crimes on her victims,

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the district court sentenced Chavez to 36 months’ imprisonment for her wire fraud

conviction in addition to the 24-month mandatory consecutive sentence for

aggravated identity theft. Chavez timely appealed her sentence to this court.

                                         II

      Counsel for Chavez has filed an Anders brief advising the court that

Chavez’s appeal is wholly frivolous and seeking permission to withdraw.

Pursuant to Anders, counsel may “request permission to withdraw where [he or

she] 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).

When seeking permission to withdraw, counsel is required to submit an appellate

brief “indicating any potential appealable issues based on the record.” Id. Once

notified of counsel’s brief, the defendant may submit additional arguments to the

court. Id. The court “must then conduct a full examination of the record to

determine whether defendant’s claims are wholly frivolous.” Id.

      Counsel’s Anders brief was served on Chavez, and she filed a response to

the brief. The government declined to file a response, explaining that counsel’s

Anders brief correctly set forth the applicable facts and law. Our resolution of

this case is therefore based on counsel’s Anders brief, Chavez’s response, and our

independent review of the record.

      Having independently reviewed the record and analyzed the parties’

arguments, we grant counsel’s motion to withdraw and dismiss this appeal. In

                                         3
doing so, we agree with counsel’s assertion that Chavez can present no non-

frivolous arguments on appeal. First, Chavez cannot bring any non-jurisdictional

claims relating to her conviction. United States v. Wright, 43 F.3d 491, 494 (10th

Cir. 1994) (“A defendant who knowingly and voluntarily pleads guilty waives all

non-jurisdictional challenges to his conviction.”). Second, Chavez cannot bring

forth a good faith jurisdictional claim on appeal because there is no reason to

question the validity of her guilty plea. The record indicates that Chavez

knowingly and voluntarily pled guilty to wire fraud and aggravated identity theft,

ROA Vol. 2, at 7-25, and she does not argue otherwise in her response brief.

      Third, we conclude that Chavez cannot in good faith attack the procedural

reasonableness of her sentence. Although Chavez now contends that she was

under the influence of drugs and was therefore incapable of objecting to the

guideline calculations at sentencing, her counsel had filed a sentencing

memorandum after receipt of the Presentence Report and prior to sentencing. No

objection was made in that pleading to the guideline calculations. In fact, counsel

stated that the guideline calculation of 33 to 41 months for wire fraud, and a

mandatory consecutive 24 months for aggravated identity theft, were not disputed.

ROA Vol. 1, at 61. Because Chavez did not object to the guideline calculations

or the district court’s fact findings, we review procedural reasonableness for plain

error. United States v. Torres-Duenas, 461 F.3d 1178, 1183 (10th Cir. 2006).

And having reviewed the record, we find no indication that the district court

                                          4
plainly erred in accepting the facts contained in the presentence report or in

calculating the applicable guideline range. We note that Chavez argues in her

response brief that the district court should not have increased her criminal

history category by two levels based on its finding that she was “under a deferred

judgment” from a Colorado state court at the time she committed wire fraud and

identity theft in May 2005. ROA Vol. 3, at 17. According to Chavez, the

Colorado state court terminated her deferred judgment before May 2005. We note

that while the record does not indicate when the deferred judgment was

terminated, the documentation Chavez attached to her response brief indicates

that it was terminated on January 24, 2006, more than eight months after she

committed the crimes of conviction. Accordingly, the district court did not err by

increasing Chavez’s criminal history category by two levels.

      We also conclude that Chavez cannot argue in good faith that the district

court’s sentence is substantively unreasonable. Sentences within the guideline

range are presumptively reasonable, and we find no evidence indicating that the

district court’s sentence was “arbitrary, capricious, whimsical, or manifestly

unreasonable.” United Sells v. Sells, 541 F.3d 1227, 1237 (10th Cir. 2008)

(citations omitted). Although the district court denied Chavez’s request for a

downward variance on her wire fraud sentence, the record indicates the district

court was well within its discretion in doing so. In addition to the fact that

Chavez fraudulently obtained approximately $214,000 from more than ten

                                           5
victims, she has a significant criminal history, having previously been convicted

of various crimes including felony theft and possession of drug paraphernalia.

ROA Vol. 3 at 7, 13-16.

      Finally, we note counsel’s representation that Chavez requested that he

appeal the district court’s order that her aggravated identity theft conviction run

consecutively with her conviction for wire fraud. This is a frivolous argument

because Congress has mandated that sentences for aggravated identity theft

convictions run consecutive to sentences for related fraud crimes. See 18 U.S.C.

§ 1028A(b)(2). The district court was therefore required to sentence Chavez to a

2-year consecutive sentence for her aggravated identity theft conviction.

                                         III

      We conclude that any appeal of the district court’s sentence would be based

on frivolous arguments. We therefore GRANT counsel’s motion to withdraw and

DISMISS this appeal.

                                               Entered for the Court


                                               Mary Beck Briscoe
                                               Chief Judge




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