                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          May 3, 2006
                                 TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 05-2105
          v.                                         (D. New Mexico)
 JOSE ANTONIO GUERRERO-                         (D.C. No. CR-04-1749-BB)
 CHAVEZ, also known as Antonio
 Chavez Guerrero,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, ANDERSON and BALDOCK, Circuit
Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in 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       This order and judgment is not binding precedent, except under the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. 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.
      Defendant-Appellant Jose Antonio Guerrero-Chavez pled guilty to one

count of illegal reentry by a deported alien previously convicted for an aggravated

felony, in violation of 8 U.S.C. § 1326(a)(1) and (b)(2). He was sentenced to

fifty-seven months’ imprisonment, followed by a two-year term of supervised

release. He has filed a timely appeal.

      Guerrero-Chavez’s appointed counsel, Louis Elias Lopez, has filed an

Anders brief and moved to withdraw as counsel. See Anders v. California, 386

U.S. 738 (1967). Guerrero-Chavez has filed a response brief to the Anders brief.

The government has declined to submit a brief. For the following reasons, we

grant Guerrero-Chavez’s counsel’s motion to withdraw as counsel and we dismiss

this appeal.

      Guerrero-Chavez was charged in a one-count indictment with unlawful

reentry by a deported alien previously convicted for an aggravated felony, in

violation of 8 U.S.C. § 1326(a)(1) and (b)(2). He pled guilty after being informed

by the district court of all the rights which he was thereby relinquishing and

indicating that he understood the ramifications of his guilty plea and that his plea

was voluntarily and freely made. As stated in Guerrero-Chavez’s plea hearing,

the factual basis for his guilty plea was the following: On June 23, 2004, Border

Patrol agents responded to the activation of a Border Patrol sensor in Dona Ana

County, New Mexico, and found Guerrero-Chavez and three other individuals


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hiding in the desert. Guerrero-Chavez admitted he was an alien and that he had

just entered the United States illegally. Upon investigation, the Border Patrol

agents discovered that Guerrero-Chavez had been previously deported from the

United States on December 9, 1997. They further discovered that he had been

convicted of a felony, corporal injury to a spouse, prior to his deportation.

      The presentence report (“PSR”) prepared by the probation office calculated

a total offense level of 21 and a criminal history category of IV, which yielded a

sentencing range of fifty-seven to seventy-one months under the United States

Sentencing Commission, Guidelines Manual (Nov. 2004) (“USSG”). The total

offense level was determined by taking the base offense level of eight and adding

sixteen points because Guerrero-Chavez was previously deported (in 1997) after

being convicted for a felony crime of violence, then deducting three points for

acceptance of responsibility. See PSR ¶ 10, R. Vol. II (citing USSG

§2L1.2(b)(1)(A)(ii)). Guerrero-Chavez made no objection to the PSR and the

district court adopted its findings. The district court then sentenced Guerrero-

Chavez to fifty-seven months, after considering the sentencing factors contained

in 18 U.S.C. § 3553(a) and the advisory Guideline range, as required by United

States v. Booker, 543 U.S. 220 (2005).

      Guerrero-Chavez’s attorney, in his Anders brief, argues that there is no

basis for challenging Guerrero-Chavez’s guilty plea or his sentence and that there


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is therefore no legally non-frivolous issue to raise on appeal. Anders authorizes

counsel to request permission to withdraw where counsel has conscientiously

examined the case and determined that any appeal would be wholly frivolous.

Anders, 386 U.S. at 744; see also United States v. Calderon, 428 F.3d 928, 930

(10th Cir. 2005). Accordingly,

      [u]nder Anders, counsel must submit a brief to the client and the
      appellate court indicating any potential appealable issues based on
      the record. The client may then choose to submit arguments to the
      court. The Court must then conduct a full examination of the record
      to determine whether defendant’s claims are wholly frivolous. If the
      court concludes after such an examination that the appeal is
      frivolous, it may grant counsel’s motion to withdraw and may dismiss
      the appeal.

Id. (citing Anders, 386 U.S. at 744).

      Guerrero-Chavez argues in his response to his counsel’s Anders brief that,

because his deportation in 1997 was stated to be because he had been convicted of

a crime of moral turpitude, pursuant to 8 U.S.C. § 1227(a)(2)(A)(i), and not

because he had been convicted of a crime of violence, his prior conviction for

corporal abuse of a spouse cannot be deemed a felony crime of violence for

purposes of his current proceeding. Accordingly, he argues, the district court

erred in increasing his base offense level by sixteen points under USSG

§2L1.2(b)(1)(A)(ii). 1


      1
          USSG §2L1.2(b)(1)(A)(ii) provides that “[i]f the defendant previously was
                                                                       (continued...)

                                          -4-
      While creative, this argument is unavailing. It did not matter whether the

prior deportation was because of his conviction for a crime of violence. As the

application note to USSG §2L1.2 specifically states, “[a] defendant shall be

considered to be deported after a conviction if the deportation was subsequent to

the conviction, regardless of whether the deportation was in response to the

conviction.” USSG §2L1.2, comment. (n.1(A)(ii)). Further, the status of his

prior conviction as a conviction for a crime of violence only becomes relevant in

his current proceeding. In this proceeding, the government is free to determine

whether his prior conviction was for a crime of violence. The PSR determined

that it was, Guerrero-Chavez made no objection to the PSR, and the district court

adopted the PSR, including its characterization of Guerrero-Chavez’s conviction

for corporal abuse of a spouse as a conviction for a felony crime of violence.

Thus, the fact that the government may have chosen to deport Guerrero-Chavez in

1997 on the stated ground of having committed a crime of moral turpitude is

irrelevant to the characterization in this case of that crime. What matters is that

he was convicted of what was indisputably a crime of violence, subsequent to that

he was deported, and he then illegally reentered the United States.


      1
       (...continued)
deported . . . after[] a conviction for a felony that is . . . a crime of violence . . .
increase [the base offense level] by 16 levels.” Deportation following a
conviction “for any other felony” mandates a base offense level increase of four
levels. Id. §2L1.2(b)(1)(D).

                                           -5-
      After fully examining the record and considering the Anders brief filed by

Guerrero-Chavez’s counsel, as well as Guerrero-Chavez’s response thereto, we

conclude that there are no non-frivolous issues upon which Guerrero-Chavez may

base his appeal. We can discern no basis for challenging Guerrero-Chavez’s

guilty plea or his sentence.

      We therefore GRANT Guerrero-Chavez’s counsel’s request to withdraw

and we DISMISS this appeal.

                                              ENTERED FOR THE COURT


                                              Stephen H. Anderson
                                              Circuit Judge




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