                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       June 6, 2006
                                   TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                       Clerk of Court



U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                       No. 05-1285
v.                                                 (District of Colorado)
                                                (D.C. No. 04-CR-499-M SK)
ED W IN A LC ER RO -G A MA L D O,

          Defendant-Appellant.




                                OR D ER AND JUDGM ENT *


Before M U RPH Y, SE YM OU R and M cCO NNELL, Circuit Judges.


      After examining the briefs and appellate record, this court has determined

unanimously that oral argument would not materially assist 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.

      Defendant, Edwin Alcerro-Gamaldo was charged in a one-count indictment

with illegal reentry after deportation subsequent to an aggravated felony, in




      *
       This order and judgment is not binding precedent, except under the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. 36.3.
violation of 8 U.S.C. 1326(a) and (b)(2). Pursuant to a plea agreement entered

into between Alcerro and the government, Alcerro pleaded guilty to the charge

contained in the indictment. He was sentenced to fifty-seven months’

imprisonment, followed by three years’ supervised release. Alcerro filed a timely

Notice of Appeal, and his counsel filed a brief pursuant to Anders v. California,

386 U .S. 738 (1967), moving to withdraw. For the reasons set forth below, we

agree with counsel that the record in this case provides no nonfrivolous basis for

an appeal, and we therefore grant counsel’s motion to withdraw and dismiss this

appeal.

      Alcerro is an alien and citizen of Honduras. On September 7, 1999, he was

convicted in the Circuit Court of M ultnomah County, Oregon of possession of a

controlled substance. He was deported on June 3, 2003. On July 27, 2004,

Alcerro was arrested by the Denver Police Department and later pleaded guilty to

possession with intent to distribute a controlled substance. After completing his

term of incarceration on the Denver conviction, Alcerro was charged in federal

district court with unlawful reentry of a deported alien subsequent to an

aggravated felony conviction, in violation of 8 U.S.C. §§ 1326(a) and (b)(2).

Alcerro did not dispute that the 1999 Oregon conviction constitutes an aggravated

felony. Accordingly, he pleaded guilty to the federal charge. The district court

accepted Alcerro’s plea after informing him of the constitutional rights he would

thereby waive and establishing the factual basis for the plea. The United States

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Probation Office then prepared a presentence report (“PSR”) which calculated

Alcerro’s criminal history as Category V. At sentencing, the district court

departed to criminal history Category IV, finding the points added to A lcerro’s

criminal history because of the temporal proximity of the instant offense and the

Denver conviction did not accurately reflect the facts surrounding the instant

offense. The district court found Alcerro’s offense level to be twenty-one,

resulting in a Guidelines range of fifty-seven to seventy-one months. After

analyzing the factors set forth in 18 U.S.C. § 3553(a), the court sentenced Alcerro

to fifty-seven months’ incarceration, the low end of the Guidelines range.

Alcerro then filed this timely appeal.

      Alcerro’s counsel has filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), advising this court that Alcerro’s appeal is wholly frivolous.

Accordingly, counsel has also filed a motion to w ithdraw . Under Anders, counsel

may “request permission to w ithdraw where counsel 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). Counsel is required to submit a

brief to the defendant and the appellate court indicating any potential appealable

issues. Id. The defendant may then submit additional arguments to the court.

“The [c]ourt must then conduct a full examination of the record to determine

whether defendant’s claims are wholly frivolous. Id. If the court concludes after

such an examination that the appeal is frivolous, it may grant counsel’s motion to

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withdraw and may dismiss the appeal.” Id. Alcerro’s counsel filed her Anders

brief on August 11, 2005. Alcerro has been given notice of the Anders brief and

counsel’s motion to withdraw. Alcerro has failed to respond to this notice. Our

conclusions, therefore, are based on counsel’s Anders brief and our own review

of the record.

      In her Anders brief, Alcerro’s counsel states there is no basis for

challenging Alcerro’s guilty plea. A guilty plea may be set aside on direct appeal

if the court holds it w as not knowing and voluntary. See United States v. Asch,

207 F.3d 1238, 1242 (10th Cir. 2000). The district court addressed Alcerro

during the change of plea hearing and meticulously questioned him about his plea

and his understanding of its consequences. Having carefully reviewed the record,

we agree there is no basis for a claim that Alcerro’s plea was not entered

knowingly and voluntarily.

      As recognized by counsel, the only other possible basis for an appeal must

relate to Alcerro’s sentence. W hen it pronounced Alcerro’s sentence, the district

court fully complied with United States v. Booker and carefully considered the

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

range. 543 U.S. 220 (2005). W e agree with counsel that there is no nonfrivolous

basis upon which Alcerro could challenge his sentence.

      Our review of the record reveals no other claims arguable on their merits,

and we conclude that Alcerro’s appeal is wholly frivolous. Accordingly,

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counsel’s motion to w ithdraw is granted and this appeal is dismissed.




                                      ENTERED FOR THE COURT




                                      M ichael R. M urphy
                                      Circuit Judge




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