                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                 UNITED STATES COURT OF APPEALS                           DEC 18 2003

                                 TENTH CIRCUIT                       PATRICK FISHER
                                                                              Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 02-3402
 v.                                            (D.C. No. 02-CR-40052-SAC)
                                                         (Kansas)
 JUSTIN DUANE LYLE,

          Defendant-Appellant.



                          ORDER AND JUDGMENT *


Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.


      Justin Duane Lyle pleaded guilty to brandishing a firearm and doing so in

relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A) and (2).

See also U.S. Sentencing Guidelines Manual § 2K2.4(a)(2). As part of a plea

agreement, the government did not move for sentencing above the eighty-four-

month mandatory minimum. The district court sentenced Mr. Lyle to eighty-

      *
       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 submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
seven months, followed by three years supervised release. Mr. Lyle’s counsel

filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and moved for

leave to withdraw as counsel. For the reasons set forth below, we grant counsel’s

motion to withdraw and dismiss the appeal.

         Anders holds that if counsel finds a case to be wholly frivolous after

conscientious examination, he may so advise the court and request permission to

withdraw. Counsel must also submit to both the court and his or her client a brief

referring to anything in the record arguably supportive of the appeal. The client

may then raise any point he chooses, and the court thereafter undertakes a

complete examination of all proceedings and decides whether the appeal is in fact

frivolous. If it so finds, it may grant counsel’s request to withdraw and dismiss

the appeal. See id. at 744. Counsel has provided Mr. Lyle with a copy of his

appellate brief and Mr. Lyle has chosen not to file additional material with this

court.

         In his Anders brief, counsel could not identify any appellate issues, but

indicated Mr. Lyle requested he raise the question of whether Mr. Lyle’s “due

process, or other rights, were violated.” Aplt. Br. at 8. The record contains no

previous due process challenges by Mr. Lyle. Presumably, Mr. Lyle lodges this

complaint in response to his having received an eighty-seven month sentence for a

crime he committed at the age of nineteen with no previous criminal history.


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      This court has interpreted 18 U.S.C. § 3742(a) to hold that a sentence

within the guidelines may not be appealed unless imposed in violation of law, or

as a result of an incorrect application of the guidelines. See United States v.

Garcia, 919 F.2d 1478, 1479-80 (10th Cir. 1990). Mr. Lyle did not object to the

calculation of his guideline range, nor to the categorization of his guideline

offense level, and was well aware that he faced a sentence of seven years to life if

he pleaded guilty to this crime. There is no indication that his sentence of only

three months above the mandatory minimum was based upon clearly erroneous

factual findings. The district court did not abuse its discretion in imposing a

sentence of eighty-seven-months. Mr. Lyle has no claim that his sentence was

either in violation of the law or was the result of an incorrect application of the

guidelines.

      After careful review of the entire proceedings, we conclude that the record

establishes no ground for appeal. We have found nothing in the record to indicate

that Mr. Lyle’s guilty plea was not knowing and voluntary, nor do we discern any

error in the district court’s application of the guidelines. As a result, we GRANT

counsel’s request to withdraw and DISMISS the appeal.

                                                ENTERED FOR THE COURT

                                                Stephanie K. Seymour
                                                Circuit Judge



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