                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        MAR 25 2003
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 02-1258
          v.                                           (D. Colorado)
 RAMON HERNANDEZ-MORALES,                              (02-CR-13-B)
 aka Alfonso Martinez,
 aka Jose Armando Martinez-Rivera,

               Defendant - Appellant.




                             ORDER AND JUDGMENT         *




Before EBEL , HENRY , and HARTZ , Circuit Judges.


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

unanimously to honor the appellee’s request for a decision on the briefs without

oral argument. See Fed. R. App. P. 34(a)(2)(C). 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        This order and judgment is not binding precedent, except under the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.
      Ramon Hernandez-Morales, an alien who had previously been convicted of

second degree assault, pleaded guilty to a charge of being in the United States

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

court to seventy months’ imprisonment, and now 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 Mr. Hernandez-Morales 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 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 or calculation of the seventy-month sentence, and he

accordingly referred to no portion of the record that might support Mr.

Hernandez-Morales’s appeal. Mr. Hernandez-Morales 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 frivolous. Mr. Hernandez-Morales does not challenge

the voluntary nature of his plea. With regard to the sentencing, Mr. Hernandez-

Morales only objected to the presentence report to matters relating to credit for


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pretrial confinement and factual bases of prior convictions. In his objections,

however, Mr. Hernandez-Morales disputed neither the fact of the prior

convictions nor the sentences imposed by the state courts.

      The presentence report indicated that pursuant to United States Sentencing

Guidelines § 2L1.2(b)(1)(A), Mr. Hernandez-Morales would be subject to a

sixteen-point increase to his base offense level of eight because he was previously

deported after a conviction for a qualifying felony. The total adjusted offense

level was 24, and after adjustment for acceptance of responsibility, the total

offense level was 21. The presentence report computed a total of ten criminal

history points based of four previous convictions. In addition, Mr. Hernandez-

Morales received two additional criminal history points because the instant

offense was committed less than two years from Mr. Hernandez-Morales’s release

from custody. Mr. Hernandez-Morales’s criminal history score placed him in the

criminal history category of V, and the resulting guideline range was 70-87

months. The government, as it had agreed to do in the plea agreement,

recommended a sentence of seventy months, the sentence that the court then

imposed.

      Because Mr. Hernandez-Morales failed to challenge the presentencing

report as to his previous convictions at the sentencing hearing, he waived his right

to challenge the assessment of criminal history points, absent a demonstration of



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plain error. United States v. Ivy , 83 F.3d 1266, 1297 (10th Cir. 1996). Mr.

Hernandez-Morales declined to file a separate brief in this appeal. He has made

no arguments regarding the assessment of criminal history points and,

consequently, has made no such showing of error. Accordingly, we conclude that

the district court properly applied the criminal points for his previous convictions.

We therefore GRANT counsel’s motion to withdraw and we DISMISS this appeal.



                                               Entered for the Court,




                                               Robert H. Henry
                                               Circuit Judge




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