                                                                  FILED
                                                     United States Court of Appeals
                                                             Tenth Circuit

                                                             July 27, 2009
                UNITED STATES COURT OF APPEALS
                                                         Elisabeth A. Shumaker
                             TENTH CIRCUIT                   Clerk of Court



UNITED STATES OF AMERICA,

            Plaintiff-Appellee,                     No. 08-8038
v.                                                 (D. Wyoming)
JESUS ALFONSO LEGARDA,                     (No. 2:05-CR-00104-WFD-1)

            Defendant-Appellant.



                        ORDER AND JUDGMENT 1


 Before HENRY, Chief Judge, PORFILIO and BRORBY, Circuit Judges.


     Jesus Alfonso Legarda pleaded guilty to one count of conspiracy to

possess with intent to distribute, and to distribute, methamphetamine in

violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846. The district

court imposed a sentence within the advisory guidelines range of 210

months’ imprisonment.

     Mr. Legarda now appeals. His counsel, in turn, filed a motion to

withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), based on



     1
        This order and judgment is not binding precedent except under the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.
his belief that the grounds for appeal are frivolous. Finding no non-

frivolous issues in this appeal, we agree and therefore grant Mr. Legarda’s

counsel’s request to withdraw and dismiss the appeal.



                              I. BACKGROUND

      On May 19, 2005, a federal grand jury returned a five-count

indictment charging Mr. Legarda with offenses concerning the distribution

of methamphetamine and possession of a firearm. Mr. Legarda entered into

a plea agreement and pleaded guilty to Count 1 of the indictment, which

alleged “Conspiracy to Possess with Intent to Distribute, and to Distribute,

Methamphetamine” in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A),

and 846. In turn, the government agreed to (1) recommend a three-level

reduction in Mr. Legarda’s offense level for his acceptance of responsibility

under U.S.S.G. § 3E1.1(a); (2) refrain from opposing Mr. Legarda’s request

for a designation to a Bureau of Prisons facility located closest to his

family; 2 and (3) recommend a sentence at the low end of the applicable

guidelines range.

      Based upon the parties’ stipulation that Mr. Legarda’s relevant

conduct involved at least 1.5 kilograms but less than 5 kilograms of



      2
          Why the government would ever oppose such a request is unclear.

                                      -2-
methamphetamine, the district court calculated Mr. Legarda’s total offense

level to be 36 with a criminal history category of I. As such, the district

court imposed a sentence of 210-months’ imprisonment–in the middle of the

advisory guidelines range of 188 to 230 months of imprisonment. The court

also imposed five years’ supervised release, a $1,000.00 fine, and a

mandatory special assessment fee of $100.00.



                               II. DISCUSSION

      In Anders, the Supreme Court held that if a defendant’s counsel “finds

[the defendant’s] case to be wholly frivolous, after a conscientious

examination of it, he should so advise the court and request permission to

withdraw.” 386 U.S. at 744. Counsel must submit to both the court and his

client a “brief referring to anything in the record that might arguably

support the appeal.” Id. The defendant may then “raise any points that he

chooses.” Id.

      We, as the reviewing court, must examine all the proceedings to

determine whether the appeal is frivolous. Id. If we agree the appeal is

frivolous, we “may grant counsel’s request to withdraw and dismiss the

appeal.” Id. “On the other hand, if [we] find[] any of the legal points

arguable on their merits (and therefore not frivolous) [we] must, prior to


                                        -3-
decision, afford the [defendant] the assistance of counsel to argue the

appeal.” Id.

      Mr. Legarda’s counsel reports that his client seeks to challenge the

district court’s sentence, despite advice that there were not any non-

frivolous issues to be raised. Counsel further notes that Mr. Legarda

voluntarily waived his right to appeal in his guilty plea. Aplt’s Br. at 2. Mr.

Legarda’s counsel served his Anders brief upon Mr. Legarda, and we

afforded him an opportunity to submit arguments in response, which he

opted not to file. The government has declined to file an answer brief.

      This appeal could conceivably have merit only if Mr. Legarda’s guilty

plea was involuntary or otherwise invalid. After fully examining the record,

we agree with counsel that there is no basis in law or fact for either of these

arguments.

      In particular, the plea transcript indicates that Mr. Legarda entered his

plea knowingly, intelligently, and voluntarily pursuant to the requirements

of Rule 11 of the Federal Rules of Criminal Procedure. During the plea

colloquy prior to the entry of his guilty plea, the court specifically

established that Mr. Legarda was competent, that he was satisfied with his

counsel, that he was pleading without coercion, that he was aware of the

charges against him and the range of punishment, and that he knew what


                                        -4-
trial rights he waived by pleading guilty.




                             III. CONCLUSION


      Having concluded that there is no non-frivolous ground in the record

on which to appeal Mr. Legarda’s conviction and sentence, we GRANT Mr.

Legarda’s counsel’s request to withdraw and DISMISS the appeal.

                               Entered for the Court,


                               Robert H. Henry
                               Chief Judge




                                       -5-
