                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   May 20, 2008
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 07-1302
 v.                                               (D.Ct. No. 07-cr-46-EWN)
                                                          (D. Colo.)
 SALOMON VALENCIANO,

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before TACHA, Circuit Judge, and ANDERSON and BRORBY, Senior 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.



      Appellant Salomon Valenciano pled guilty to one count of unlawful re-


      *
         This order and judgment is not binding precedent except under the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.
entry of a deported alien subsequent to a felony conviction, in violation of 8

U.S.C. § 1326(a) and (b)(2). The district court sentenced Mr. Valenciano to

forty-one months imprisonment. Although Mr. Valenciano appeals his conviction

and sentence, his attorney has filed an Anders brief and a request for permission

to withdraw as counsel, which we construe as a motion to withdraw. See Anders

v. California, 386 U.S. 738, 744 (1967). For the reasons set forth hereafter, we

grant counsel’s motion to withdraw and dismiss this appeal. Id.



                                   I. Background

      On February 5, 2007, a one-count indictment issued charging Mr.

Valenciano with unlawful re-entry of a previously deported alien in violation of 8

U.S.C. § 1326(a) and (b)(2). Mr. Valenciano pled guilty as charged in exchange

for the government’s offer to recommend a sentence at the bottom of the

applicable advisory Guidelines range. In pleading guilty, Mr. Valenciano

submitted a statement in advance of his guilty plea which included, in part, his

wish to plead guilty to the offense charged and acknowledgment of his

understanding of the penalties he faced and rights he would relinquish in pleading

guilty.



      At the plea hearing, the district court conducted a Rule 11 colloquy. See

Fed. R. Crim. P. 11. During the hearing, Mr. Valenciano indicated, in part, that

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he: (1) understood the charges against him and the provisions of the plea

agreement which he entered and signed; (2) understood the offense to which he

was pleading guilty was a serious felony offense; (3) acknowledged he discussed

the offense charged and his plea agreement and consequences of entering such a

plea with his counsel, with whom he was satisfied; (4) understood the penalties

associated with pleading guilty and his rights as explained to him and that by

pleading guilty he was giving up those rights; (5) acknowledged he entered the

country illegally after prior deportation following an aggravated felony

conviction; and (6) confirmed his wish to plead guilty to the offense charged. In

accepting his guilty plea, the district court found Mr. Valenciano’s guilty plea

was knowing and voluntary and that he was fully competent and capable of

entering an informed plea.



      After Mr. Valenciano pled guilty, a probation officer prepared a

presentence report calculating his sentence under the applicable United States

Sentencing Guidelines (“Guidelines” or “U.S.S.G.”). The probation officer

calculated the base offense level at eight under U.S.S.G. § 2L1.2(a) and added an

eight-level adjustment under § 2L1.2(b)(1)(C) because Mr. Valenciano had been

deported subsequent to having been convicted for an aggravated felony offense.

In addition, based on Mr. Valenciano’s acceptance of responsibility for the

offense of conviction, the probation officer included a three-level reduction, for a

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total offense level of thirteen. A total offense level of thirteen, together with a

criminal history category of VI, resulted in a Guidelines imprisonment range of

thirty-three to forty-one months. Neither party filed objections to the presentence

report.



      Prior to sentencing, Mr. Valenciano filed a motion for a downward

departure, arguing his criminal history was over-represented because four of his

convictions were misdemeanors and contending it was unlikely he would commit

further crimes. At the sentencing hearing, the district court denied Mr.

Valenciano’s request for a downward departure, pointing out his entire criminal

history included three uncounted prior convictions for illegal re-entry into the

United States which were not included in his criminal history category of VI. The

district court considered these three uncounted prior convictions, together with

the fact Mr. Valenciano was before the court on his eleventh conviction and had

returned to the United States on seven occasions after deportation, to conclude his

criminal history category properly represented the seriousness of his criminal

history, accurately reflected the fact he was a recidivist, and was the driving force

for imposition of a sentence at the top of the Guidelines range. After adopting the

uncontested facts in the presentence report and explaining it had considered the

applicable Guidelines and 18 U.S.C. § 3553(a) sentencing factors, the district

court imposed a forty-one-month term of imprisonment.

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      Following Mr. Valenciano’s timely notice of appeal, his appointed counsel

filed an Anders appeal brief explaining that, after a conscientious examination,

the appeal is wholly frivolous as no legally viable or meritorious issues exist to

contest the validity of his conviction and sentence. See Anders, 386 U.S. at 744.

In support, counsel pointed out: (1) Mr. Valenciano’s guilty plea was entered into

voluntarily and intelligently; (2) sufficient evidence existed to form a factual

basis for his plea based on the uncontested fact he was previously deported

following an aggravated felony conviction and re-entered the country without the

government’s permission; and (3) the forty-one-month sentence was procedurally

and substantively reasonable. Pursuant to Anders, this court gave Mr. Valenciano

an opportunity to respond to his counsel’s Anders brief. See 386 U.S. at 744. To

date, Mr. Valenciano has filed no response.



                                   II. Discussion

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

before us. See id. The record establishes Mr. Valenciano’s guilty plea was

voluntarily, knowingly, and intelligently entered and that sufficient evidence

supported both his plea and conviction. We review Mr. Valenciano’s sentence for

reasonableness, as guided by the factors in 18 U.S.C. § 3553(a). See United

States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006) (per curiam). Having made

such a review, we find no nonfrivolous basis for challenging the sentence

                                          -5-
imposed. The district court properly considered Mr. Valenciano’s request for a

downward departure, together with the sentencing factors in § 3553(a), the

advisory Guidelines, and the uncontested facts in the presentence report. The

district court then sentenced him to forty-one months imprisonment, which is

within the advisory Guidelines range of thirty-three to forty-one months

imprisonment and is entitled to a rebuttable presumption of reasonableness. Id. at

1053-55. Mr. Valenciano has not rebutted that presumption with any

nonfrivolous reason warranting a lower sentence. Id.



                                 III. Conclusion

      For these reasons, no meritorious appellate issue exists. Accordingly, we

grant counsel’s motion to withdraw and DISMISS Mr. Valenciano’s appeal.



                                      Entered by the Court:

                                      WADE BRORBY
                                      United States Circuit Judge




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