                                                                            F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                 UNITED STATES COURT OF APPEALS                             FEB 11 2005

                                 TENTH CIRCUIT                       PATRICK FISHER
                                                                               Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 04-2003
 v.
                                                 (D.C. No. CR-03-1331 BB)
                                                       (New Mexico)
 ESAU MADRID-FLORES, also
 known as Javier Armondo-Carreon,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, LUCERO, and O’BRIEN, Circuit Judges.


      Esau Madrid-Flores pled guilty to reentry of an illegal alien after

deportation for a prior aggravated felony in violation of 8 U.S.C. § 1326(a)(1) and

(2) and 8 U.S.C. § 1326(b)(2). On appeal, Mr. Madrid-Flores’ counsel filed a


      *
       After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
brief pursuant to Anders v. California, 386 U.S. 738 (1967), and moved for leave

to withdraw. For the reasons set out below, we grant counsel’s motion to

withdraw and dismiss the appeal.

      Anders holds that if counsel finds a case to be wholly frivolous after

conscientious examination, he may so advise the court and request permission to

withdraw. Counsel must submit to both the court and his client a brief referring

to anything in the record arguably supportive of the appeal. The client may then

raise any point he chooses, and the court thereafter must undertake a complete

examination of all proceedings to determine whether the appeal is in fact

frivolous. If it so finds, it may grant counsel’s request to withdraw and dismiss

the appeal. Id. at 744. Counsel has provided Mr. Madrid-Flores with a copy of

his appellate brief and Mr. Madrid-Flores has chosen not to file additional

material with this court.

      In his Anders brief, counsel identified only one potentially appealable issue

for our consideration, whether the district court erred in its application of the

sentencing guidelines by determining Mr. Madrid-Flores’ criminal history

category was IV. A sentencing court’s determination of the facts as a basis for

application of the sentencing guidelines is reviewed under the clearly erroneous

standard of review. United States v. Torres, 53 F.3d 1129, 1142 n.13 (10th Cir.

1995), cert. denied, 515 U.S. 1152. The district court applied the following


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analysis to compute Mr. Madrid-Flores’ sentence. Mr. Madrid-Flores’ base

offense level for unlawfully entering or remaining in the United States was eight

pursuant to U.S.S.G. § 2L1.2. Because Mr. Madrid-Flores has a prior felony

conviction that is a crime of violence (sexual assault of a child), a sixteen level

increase was warranted in accordance with U.S.S.G. § 2L1.2(b)(1)(A). 1 In

addition, the court found that Mr. Madrid-Flores had demonstrated an acceptance

of responsibility for the offense of conviction and applied a three level reduction

under U.S.S.G. § 3E1.1. Thus, Mr. Madrid-Flores’ adjusted offense level was

twenty-one. According to the Presentence Investigation Report (PSR), he had

seven criminal history points, which established a criminal history category of IV

under the guidelines. The resulting guideline range was 57-71 months. The

district court sentenced Mr. Madrid-Flores to 57 months, the minimum sentence

authorized under the guideline range.

      Although no objections were filed to the PSR, Mr. Madrid-Flores argued

through counsel at sentencing that he had not committed one of the prior crimes

enumerated in the PSR, for which he received one criminal history point. This

one point would shift Mr. Madrid-Flores’ criminal history category from IV to III,

which carries a guideline range of 46 to 57 months. In response, the probation


      1
       Mr. Madrid-Flores was deported on May 4, 2000, subsequent to a
conviction for Attempt to Commit 2nd Degree Assault, Larimer County District
Court, Fort Collins, Colorado (Case No. 99CR710).

                                          -3-
officer represented to the court that a records check was performed based on

NCIC fingerprint comparisons and the records indicated that Mr. Madrid-Flores

did in fact commit the prior crime at issue. Mr. Madrid-Flores offered no

evidence to the contrary. The district court thus did not err in finding that he

committed the prior crime.

      In sum, after a careful review of the record, we conclude that Mr. Madrid-

Flores has no grounds for appeal. We have found nothing in the record to suggest

that Mr. Madrid-Flores’ sentence was excessive or that his criminal history

category should be reduced to III. We GRANT counsel’s request to withdraw

and DISMISS the appeal.

                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Circuit Judge




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