                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                February 6, 2008
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court
                     UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 07-2098
 v.                                               (D.C. No. CR-07-112 JP)
                                                         (D.N.M.)
 BARTOLO AGUIRRE-BARRAZA,

          Defendant-Apellant.


                                ORDER AND JUDGMENT *


Before BRISCOE, EBEL, and MCCONNELL, Circuit Judges.


      Defendant Bartolo Aguirre-Barraza pleaded guilty to one count of reentry

by a previously deported alien in violation of 8 U.S.C. § 1326(a). The district

court received the presentence report (“PSR”), and neither the Government nor

Aguirre-Barraza objected to its contents. Aguirre-Barraza did assert, however,

that his criminal history category over-represented the seriousness of his past


      *
        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 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order and judgment is not binding precedent, except under the doctrines of law of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.
offenses. The district court disagreed and held that the advisory guideline range

was appropriate because, in addition to his various convictions, Aguirre-Barraza

had been arrested multiple times for serious crimes. Accordingly, the district

court sentenced Aguirre-Barraza to 15 months’ imprisonment, a sentence at the

low end of the advisory guideline range.

      On appeal, counsel for Aguirre-Barraza filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), which presented Aguirre-Barazza’s challenge to

both his guilty plea and his sentence. In addition, counsel moved for leave to

withdraw as Defendant’s counsel. Neither Aguirre-Barraza nor the Government

filed a brief responding to counsel’s Anders brief. We have independently

reviewed the record as required by Anders, 386 U.S. at 744. Based on that

review, we conclude that the district court did not err by sentencing Aguirre-

Barraza to 15 months pursuant to his guilty plea.

      A district court must ensure that a guilty plea is knowing, intelligent, and

truly voluntary. United States v. Asch, 207 F.3d 1238, 1242 (10th Cir. 2000).

This issue is a matter of law, which we review de novo. United States v. Gigot,

147 F.3d 1193, 1197 (10th Cir. 1998). The record belies Aguirre-Barraza’s

challenge to his guilty plea. The district court stated several times during the

sentencing hearing that it found that Aguirre-Barraza “knowingly, voluntarily,

and intelligently” entered his guilty plea. Nothing in the record contradicts this

statement, and accordingly, Aguirre-Barraza’s challenge to his guilty plea fails.

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      When analyzing the district court’s application of the advisory sentencing

guidelines, we review factual findings for clear error and legal determinations de

novo. United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006). In our

analysis of the court’s application of the guidelines, we lack jurisdiction,

however, to consider the court’s discretionary denial of a downward departure

pursuant to U.S.S.G. § 4A1.3(b). United States v. Angel-Guzman, 506 F.3d 1007,

1017–18 (10th Cir. 2007). If we determine that the district court correctly applied

the guidelines and sentenced the defendant within the guideline range, the

sentence is presumptively reasonable. Kristl, 437 F.3d at 1055.

      In the instant case, after denying Aguirre-Barraza’s request for a downward

departure, the district court correctly determined that Aguirre-Barraza total

offense level was 10 and his criminal history category was IV. Because the court

sentenced Aguirre-Barraza within the advisory guideline range, the sentence is

presumptively reasonable. The fact that the district court considered Aguirre-

Barraza’s past arrests does not disturb this presumption. See United States v.

Chavez-Calderon, 494 F.3d 1266, 1269–70 (10th Cir. 2007) (holding that a

district court may consider uncharged criminal incidents disclosed in a PSR when

evaluating the sentencing factors listed at 18 U.S.C. § 3553(a)). Accordingly,




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Aguirre-Barraza’s sentence is AFFIRMED and we GRANT counsel’s motion to

withdraw.


                                  ENTERED FOR THE COURT



                                  David M. Ebel
                                  Circuit Judge




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