                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          NOV 6 2002
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
 v.                                                    No. 02-3129
                                              D.C. No. 01-CR-10130-01 WEB
 MAXIMILIANO RODRIGUEZ-                                (D. Kansas.)
 LOPEZ,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


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



      Maximiliano Rodriguez-Lopez, an alien deported after being convicted of

an aggravated felony, pled guilty to a charge of being found in the United States

in violation of 8 U.S.C. § 1326(a) and (b)(2). He was sentenced by the district

court to forty-one months’ imprisonment and three years of supervised release,




      *
         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judgment is not binding precedent, except under the doctrines of law of the case,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. 36.3.
and appeals his sentence. We exercise jurisdiction pursuant to 18 U.S.C.

§ 3742(a) and 28 U.S.C. § 1291, and affirm.

      On appeal, counsel for Rodriguez-Lopez filed an Anders brief and moved

to withdraw as counsel. See Anders v. California, 386 U.S. 738, 744 (1967)

(permitting counsel who considers an appeal to be wholly frivolous to advise the

court of that fact, request permission to withdraw from the case, and submit a

brief referring to those portions of the record that arguably support the appeal).

In the Anders brief, counsel stated that he could find no error in the district

court’s imposition of the forty-one-month sentence, but reported that Rodriguez-

Lopez considered the sentence too harsh. Rodriguez-Lopez was afforded an

opportunity to respond to the Anders brief, but declined to do so.

      We have fully examined the proceedings as required by Anders, id., and

conclude that the appeal is wholly frivolous. The district court properly

calculated the offense level and criminal history category. Although the United

States had recommended a sentence at the low end of the applicable guideline

range, the district court rejected this recommendation and imposed a sentence at

the top of the range, taking into consideration Rodriguez-Lopez’s extensive prior

criminal history. We have held that a district court can impose any sentence

within the applicable guideline range without entitling the defendant to withdraw

the guilty plea. United States v. Siedlik, 231 F.3d 744, 749 (10th Cir. 2000).


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“We are unwilling to scrutinize sentencing justifications offered by a district

court when the sentence is within an admittedly appropriate range unless those

justifications implicate 18 U.S.C. § 3742(a)(1) or (2).” United States v. Garcia,

919 F.2d 1478, 1482 (10th Cir. 1990). In this case, the district court’s sentence

was neither contrary to law nor an incorrect application of the sentencing

guidelines. Thus, 18 U.S.C. § 3742(a)(1) and (2) are not implicated.

      We see no issues in this case that might properly be the subject of an

appeal. Accordingly, counsel’s motion to withdraw is GRANTED, and

Rodriguez-Lopez’s conviction is AFFIRMED.

      The mandate shall issue forthwith.



                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge




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