                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                     UNITED STATES COURT OF APPEALS                 August 12, 2008
                                                                 Elisabeth A. Shumaker
                                   TENTH CIRCUIT                     Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff–Appellee,
                                                       No. 08-2025
 v.                                             (D.C. No. 07-01420-MCA-1)
                                                         (D.N.M.)
 ALEJANDRO ORTIZ-LOPEZ,

          Defendant–Appellant.


                                ORDER AND JUDGMENT *


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.


      Alejandro Ortiz-Lopez, a citizen of Mexico, appeals his sentence of 41

months’ imprisonment imposed following his plea of guilty to one count of

unlawful reentry into the United States in violation of 8 U.S.C. § 1326(a) and (b).

In a brief filed pursuant to Anders v. California, 386 U.S. 738 (1967), Ortiz-

Lopez’s counsel asserts that there are no nonfrivolous arguments for presentation

on appeal and moves for leave to withdraw. Because we agree that there are no



      *
        The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The 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. 32.1.
meritorious issues for appeal, we dismiss the appeal, and grant counsel’s motion

to withdraw.

                                         I

      On May 8, 2007—only four days after Ortiz-Lopez was deported due to

New Mexico state convictions for assault with intent to commit a violent felony,

false imprisonment, and aggravated battery—an agent from the United States

Border Patrol apprehended him as he attempted to cross into the United States

near Columbus, New Mexico. Two months later, on July 10, 2007, a federal

grand jury indicted Ortiz-Lopez on one count of unlawful reentry of a previously

removed alien, in violation of 8 U.S.C. § 1326(a) and (b). Ortiz-Lopez

subsequently pleaded guilty to the indictment without a plea agreement.

      Ortiz-Lopez’s Presentence Report (“PSR”) calculated a total offense level

of 21 and a criminal history category of III. His criminal history category was set

at III based on five criminal history points—three from the aforementioned New

Mexico state convictions, and two because his illegal reentry into the United

States occurred within two years of his release from state custody. See U.S.S.G.

§ 4A1.1(a) & (e). These sentencing considerations yielded an advisory United

States Sentencing Guidelines (“Guidelines”) range of 46 to 57 months’

imprisonment. Nevertheless, the PSR noted that, under § 4A1.3(b), the

Guidelines appeared to substantially overrepresent Ortiz-Lopez’s criminal history

and that a downward departure might therefore be warranted. It recommended

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that the court consider imposing a sentence as if Ortiz-Lopez had been placed in a

criminal history category of II, which would have resulted in an advisory

sentencing range of 41 to 51 months’ imprisonment.

      Both before and during his sentencing hearing, Ortiz-Lopez asked the court

to grant a downward variance under 18 U.S.C. § 3553(a) and to sentence him to

30 months’ imprisonment. At the January 15, 2008, sentencing hearing, the

district court adopted the PSR’s recommendation for a downward departure and

placed Ortiz-Lopez in criminal history category II. The court then analyzed the

factors set forth in § 3553(a), and imposed a sentence of 41 months’

imprisonment, the bottom of the resulting Guidelines range. This timely appeal

followed. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

                                         II

      If an attorney conscientiously examines a case and determines that any

appeal would be wholly frivolous, counsel may “so advise the court and request

permission to withdraw.” Anders, 386 U.S. at 744. Counsel must submit a brief

to both the appellate court and the client, pointing to anything in the record that

could potentially present an appealable issue. The client may then choose to offer

argument to the court. If, upon complete examination of the record, the court

determines that the appeal is frivolous, it may grant counsel’s request to withdraw

and dismiss the appeal. Id. Acting pursuant to Anders, counsel in the present

case provided Ortiz-Lopez with a copy of the appellate brief, and Ortiz-Lopez has

                                         -3-
declined the opportunity to file a pro se brief in response.

      Counsel’s brief raises only two arguably appealable issues: (1) whether the

district court adequately considered the sentencing factors set forth in § 3553(a),

and (2) whether the district court imposed a substantively reasonable sentence.

Upon complete review of the record, we conclude that there is no nonfrivolous

basis for challenging the sentence. The transcript from the sentencing hearing

demonstrates that the district court properly considered the factors outlined in

§ 3553(a), and that the sentence given, considering each of those statutory factors,

was reasonable. See Gall v. United States, 128 S. Ct. 586, 597 (2007)

(“Regardless of whether the sentence imposed is inside or outside the Guidelines

range, the appellate court must review the sentence under an abuse-of-discretion

standard.”); Rita v. United States, 127 S. Ct. 2456, 2468 (2007) (“The sentencing

judge should set forth enough to satisfy the appellate court that he has considered

the parties’ arguments and has a reasoned basis for exercising his own legal

decisionmaking authority.”).

      Thus, because Ortiz-Lopez has failed to present us with any meritorious

grounds for appeal, we DISMISS the appeal, and GRANT counsel’s motion to

withdraw.

                                        ENTERED FOR THE COURT


                                        Carlos F. Lucero
                                        Circuit Judge

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