                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                 December 13, 2007
                                 TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                    Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 07-2080
          v.                                         (D. New Mexico)
 AGUSTIN BARRAZA-RAMIREZ,                        (D.C. No. CR-06-2451 JP)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.


      Augustin Barraza-Ramirez pleaded guilty to a one-count information

charging him with illegal reentry of a deported alien. See 8 U.S.C. § 1326(a).

The district court sentenced him to 24 months’ imprisonment, followed by three

years of supervised release. On appeal Mr. Barraza-Ramirez’s counsel filed an

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

U.S. 738 (1967). We received no response from Mr. Barraza-Ramirez. Because


      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and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.
we discern no meritorious issues for appeal, we grant the motion to withdraw and

dismiss the appeal.

      A United States Border Patrol agent apprehended Mr. Barraza-Ramirez in

Animas, New Mexico, in October 2006. He admitted that he was a Mexican

citizen illegally in the United States. On November 30, 2006, he pleaded guilty

to a one-count information without the benefit of a plea agreement. Because

Mr. Barraza-Ramirez had previously been convicted of an aggravated felony

(possession with intent to distribute 100 kilograms or more of marijuana, see

21 U.S.C. § 841(b)(1)(B)) he faced a possible prison sentence of up to 20 years

under 8 U.S.C. § 1326(b)(2). See Almendares-Torres v. United States., 523 U.S.

224, 226 (1998); United States v. Moore, 401 F.3d 1220 (10th Cir. 2005).

      Under the advisory United States Sentencing Guidelines, Mr. Barraza-

Ramirez’s conviction carried a base offense level of 8. See USSG § 2L1.2(a).

Because he had been deported following a conviction for a drug-trafficking

offense for which the sentence imposed was 13 months or less, the Guidelines

required a 12-level enhancement. See id. at § 2L1.2(b)(1)(B). After a 3-level

reduction for acceptance of responsibility, his final offense level was 17. With a

criminal-history category of III, his Guidelines sentencing range was 30 to 37

months’ imprisonment.

      Mr. Barraza-Ramirez did not challenge any aspect of the presentence

report, which included the Guidelines-range calculation and information about his

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background, family, and other potentially relevant factors. The district court

therefore adopted the report’s factual findings. At the sentencing hearing

Mr. Barraza-Ramirez requested that his sentence be calculated based on an

offense level of 15, the level he would have received had he accepted the

government’s fast-track plea offer. The government did not object to this request,

and the court sentenced him to 24 months’ imprisonment, at the bottom of the

sentencing range for an offense level of 15 and criminal-history category of III.

The court noted that although not a Guidelines sentence, the sentence would

comply with the statutory requirement of being:

      sufficient but not greater than necessary to comply with the purposes
      set forth in the statute, which include the nature and circumstances of
      the offense and history and characteristics of the defendant, the need
      for the sentence to reflect the seriousness of the offense, to promote
      respect for the law, to provide just punishment for the offense, to
      afford adequate deterrence to criminal conduct, and to protect the
      public from further crimes of the defendant.

R. Vol. III at 8.

      Under the Supreme Court’s decision in Anders, a court-appointed defense

counsel may “request permission to withdraw [from an appeal] 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) (citing

Anders, 386 U.S. at 744). This process requires counsel to:

      submit a brief to the client and the appellate court indicating any
      potential appealable issues based on the record. The client may then
      choose to submit arguments to the court. The Court must then

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      conduct a full examination of the record to determine whether
      defendant's claims are wholly frivolous. If the court concludes after
      such an examination that the appeal is frivolous, it may grant
      counsel's motion to withdraw and may dismiss the appeal.

Id. (citations omitted).

      An appeal in this case would be meritorious only if the guilty plea were not

voluntary or if the sentence were unreasonable. After conducting an independent

examination of the record, we agree with counsel’s conclusion that no

conceivably meritorious basis for appeal exists.

      A valid guilty plea must be knowingly, intelligently, and voluntarily made.

See United States v. Gigot, 147 F.3d 1193, 1197 (10th Cir. 1998); see also Fed. R.

Crim. P. 11. The record indicates that the magistrate judge fulfilled the

requirements of Rule 11 and those announced in Gigot to ensure the validity of

the plea. The judge verified a factual basis for the plea; questioned the defendant

to confirm that he understood the charges against him; informed him of the

maximum possible penalty provided by law and of the consequences of the plea;

and otherwise ensured that the plea was freely, voluntarily, and intelligently

made. Mr. Barraza-Ramirez has failed to point to any evidence or argument that

would place the plea’s validity in doubt, so any appeal challenging the plea would

be frivolous.

      Nor is there any nonfrivolous ground for appealing the reasonableness of

Mr. Barraza-Ramirez’s sentence. Although the district court imposed a sentence


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outside the Guidelines, the variance was in Mr. Barraza-Ramirez’s favor. A

sentence within the Guidelines range would have been accorded a presumption of

reasonableness. See Rita v. United States, 127 S.Ct. 2456, 2462–63 (2007). The

court explained its decision to impose its decision with reference to the factors

under 18 U.S.C. § 3553(a). In addition, when the court asked the parties if there

was any reason why the proposed sentence should not be imposed, both parties

replied that there was not. No colorable ground exists for appealing the length of

the sentence.

      We can discern no potentially meritorious ground for appeal of

Mr. Barraza-Ramirez’s conviction or sentence. We therefore GRANT counsel’s

motion to withdraw and DISMISS the appeal.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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