                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                   September 21, 2011
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                      No. 10-8106
          v.                                             (D. Wyoming)
 GILBERTO PINON-AYON,                          (D.C. No. 1:09-CR-00210-ABJ-2)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      After a jury trial in the United States District Court for the District of

Wyoming, Defendant Gilberto Pinon-Ayon was convicted of a methamphetamine

conspiracy and sentenced to 121 months’ imprisonment. He appealed and we set

aside the sentence. On remand the district court imposed the same sentence.

Defendant has filed a notice of appeal to challenge his sentence on remand.

Defense counsel, finding no meritorious issue for appeal, has submitted an Anders


      *
       After examining the briefs and 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); 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not binding precedent except under the doctrines of law of the case, res judicata,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.
brief and a motion for leave to withdraw. See Anders v. California, 386 U.S. 738

(1967). Defendant has been provided with a copy of the brief, see id. at 744

(defendant must be given a copy of the Anders brief and provided time to

respond), but has filed no response with this court. We have jurisdiction under

28 U.S.C. § 1291. Agreeing that there are no meritorious issues for appeal, we

grant counsel’s motion to withdraw and dismiss the appeal.

I.    BACKGROUND

      Defendant was indicted on one count of conspiracy to possess with intent to

distribute, and to distribute, more than 50 grams of a substance containing a

detectable amount of methamphetamine, see 21 U.S.C §§ 846; 841(a)(1),

(b)(1)(B), and one count of possession with intent to distribute more than 50

grams of a substance containing a detectable amount of methamphetamine, see id.

§ 841(a)(1), (b)(1)(B). At trial he acknowledged that he had agreed to drive

Rosalio Pedraza-Leon to Cheyenne, Wyoming, and that Pedraza brought along a

bag that he asked Defendant to hide in the truck. But he asserted that he did not

know that the bag contained methamphetamine. The jury found Defendant guilty

on the conspiracy charge but not guilty on the possession charge.

      When determining the total quantity of methamphetamine for which

Defendant was responsible under the Sentencing Guidelines, the district court

included several prior drug transactions that Pedraza claimed to have conducted

with Defendant, thereby increasing the amount of methamphetamine from 451

                                        -2-
grams (the amount found when Defendant was arrested) to 1046.35 grams, which

raised the base offense level from 30 to 32. See USSG § 2D1.1(a)(5), (c)(4),

(c)(5). The district court also imposed a two-level enhancement for obstruction of

justice under USSG § 3C1.1 without making specific findings that the Defendant

had willfully impeded or obstructed justice. See United States v. Dunnigan, 507

U.S. 87, 95 (1993) (district court must make independent findings necessary to

establish that defendant obstructed justice by testifying at trial). The offense

level of 34 and Defendant’s criminal-history category of III resulted in a

guideline sentencing range of 188 to 235 months. See USSG ch. 5, pt. A. The

district court, however, varied downward four levels and imposed a sentence of

121 months.

      Defendant appealed his sentence, challenging the consideration of the

additional methamphetamine and the obstruction enhancement. The government

conceded the Dunnigan error and moved to vacate Defendant’s sentence and

remand for resentencing. See United States v. Pinon-Ayon, 392 F. App’x 648,

648 (10th Cir. 2010). We granted the motion. See id.

      On remand the government informed the district court that it no longer

sought an obstruction-of-justice enhancement or a drug-quantity increase based on

Pedraza’s statements. As a result, Defendant had a base offense level of 30 and a

sentencing range of 121 to 151 months. See USSG § 2D1.1(a)(5), (c)(5); id. ch.

5, pt. A. Defense counsel argued that the court should again vary downward four

                                          -3-
levels and impose a sentence in the range of 78 to 97 months. See 21 U.S.C.

§ 841(b)(1)(B)(viii). The court, however, imposed the same 121-month sentence

it had imposed previously.

II.   DISCUSSION

      Under Anders if an attorney examines a case and determines that an appeal

desired by his client would be “wholly frivolous,” counsel may “so advise the

court and request permission to withdraw.” 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. See id. The client

may then choose to offer argument to the court. See id. If, upon close

examination of the record, the court determines that the appeal is frivolous, it may

grant counsel’s request to withdraw and dismiss the appeal. See id.

      After conducting an independent examination of the record, we agree with

counsel’s conclusion that no conceivably meritorious basis for appeal exists.

Defendant’s main contention at sentencing and on appeal appears to be that he

deserves a shorter sentence than Pedraza’s 120-month sentence because Pedraza

was a drug-dealer with an extensive criminal record whereas Defendant was just a

mule. But a sentence within a properly calculated guideline sentencing range is

presumptively reasonable, and Defendant must rebut this presumption “by

demonstrating that the sentence is unreasonable in light of the other sentencing

factors laid out in [18 U.S.C.] § 3553(a).” United States v. Kristl, 437 F.3d 1050,

                                         -4-
1055 (10th Cir. 2006). Although some factors suggest that Pedraza should have

received a longer sentence than Defendant, Pedraza, unlike Defendant, accepted

responsibility for his crimes and provided assistance to the government. Through

two sentencing hearings the district court maintained that 121 months’

imprisonment was the proper sentence for Defendant’s actions, and there is

nothing in those hearings that rebuts the presumption of reasonableness.

III.   CONCLUSION

       We GRANT defense counsel’s motion to withdraw and DISMISS the

appeal.

                                      ENTERED FOR THE COURT


                                      Harris L Hartz
                                      Circuit Judge




                                        -5-
