                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                   December 10, 2015
                      UNITED STATES COURT OF APPEALS
                                                                   Elisabeth A. Shumaker
                                   TENTH CIRCUIT                       Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                      No. 15-7010
                                              (D.C. No. 6:14-CR-00048-RAW-2)
 PEDRO HERNANDEZ-PEREZ, a/k/a                            (E.D. Okla.)
 Johnny Garcia,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, LUCERO, and McHUGH, Circuit Judges. **


      Defendant Pedro Hernandez-Perez pled guilty to possession with intent to

distribute heroin, 21 U.S.C. § 841(a)(1), (b)(1)(A); 18 U.S.C. § 2, and was

sentenced to 57 months’ and three years’ supervised release. I R. 27–29. Our

jurisdiction arises under 28 U.S.C. § 1291. We dismiss the appeal and grant Mr.

Hernandez-Perez’s counsel’s motion to withdraw.

      *
        This order and judgment is not binding precedent, except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
                                   Background

      Mr. Hernandez-Perez was a passenger in a vehicle pulled over by an

Oklahoma Highway Patrol trooper. III R. 4. When the driver gave suspicious

answers to the trooper’s questions, the trooper requested, and the driver granted,

permission to search the car. Id. After the trooper’s dog alerted on both the

driver and passenger sides, the trooper discovered bundles of heroin. Id. Mr.

Hernandez-Perez and the driver were transporting the drugs from Oklahoma City

to New York. Id.

      Without a plea agreement, Mr. Hernandez-Perez pled guilty to count I of a

superseding indictment. The probation officer prepared a presentence

investigation report (PSR). III R. 1–10. Mr. Hernandez-Perez qualified for the

“safety valve,” under 18 U.S.C. §§ 3553(f)(1)–(5), which permitted the judge to

sentence him under the advisory guidelines instead of the statutory minimum of

ten years under 21 U.S.C. § 841. See id. at 8. The PSR calculated Mr.

Hernandez-Perez’s total offense level as a 25. Id. at 6. His base offense level of

30 was adjusted downward for the safety-valve adjustment (-2) and for acceptance

of responsibility (-3). Id. at 5–6. With a criminal history category of I, Mr.

Hernandez-Perez’s sentencing range came to 57–71 months under the advisory

guidelines. Id. at 6, 8. Mr. Hernandez-Perez did not object to the PSR and did

not request a non-guidelines sentence. At the sentencing hearing, Mr. Hernandez-

Perez offered no argument regarding his appropriate sentence, but did apologize

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to the court for his offense.

      Counsel for Mr. Hernandez-Perez has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), and has moved to withdraw. Anders holds that if

counsel finds an appeal “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 also submit to the court a brief addressing anything in

the record that arguably supports the appeal. Id. Counsel has addressed possible

challenges to the conviction as well as the sentence and expressed her

professional opinion that no facts support such challenges. Counsel served the

brief and the motion to withdraw on Mr. Hernandez-Perez, and the docket sheet

reflects that the clerk of court also notified him and he did not file a brief. See

10th Cir. R. 46.4(B)(2).

      We have conducted our own review of the record and agree that there are

no non-frivolous issues for appeal. The record reflects a plea that is knowing and

voluntary, and no factual errors are apparent in the PSR or in the calculation of

the advisory guideline range. See Gall v. United States, 552 U.S. 38, 51 (2007)

(discussing procedural reasonableness). A potential ten-year mandatory minimum

sentence did not apply because of the safety-valve reduction, and Mr. Perez-

Hernandez received a sentence at the bottom of the guideline range. A sentence

within the properly calculated guideline range is presumptively reasonable, with

the burden on the defendant to rebut the presumption and demonstrate that the

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sentence is unreasonable. United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir.

2006). In these circumstances, Mr. Perez-Hernandez lacks an argument that his

sentence was procedurally or substantively unreasonable.

      We DISMISS the appeal and GRANT the pending motion to substitute

counsel and GRANT counsel’s motion to withdraw.



                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




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