                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                              December 12, 2008
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 08-2072
          v.                                         (D. New Mexico)
 JESUS HERNANDEZ-HERNANDEZ,                   (D.C. No. 2:07-cr-00884-LH-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.


      Jesus Hernandez-Hernandez pleaded guilty in the United States District

Court for the District of New Mexico to unlawful entry by a deported alien, see

8 U.S.C. § 1326(a), (b). The district court sentenced him to 51 months’

imprisonment, and he appealed. Finding no meritorious issues for appeal, his

counsel has submitted an Anders brief and a motion for leave to withdraw. See

Anders v. California, 386 U.S. 738 (1967). Counsel provided Mr. Hernandez-


      *
       After examining the briefs and 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); 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not binding precedent except under the doctrines of law of the case, res judicata,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.
Hernandez with a copy of the brief, but Mr. Hernandez-Hernandez has filed no

response with this court. Exercising jurisdiction under 28 U.S.C. § 1291, we

dismiss the appeal and grant the motion.

      Anders held that a court-appointed defense counsel may “request

permission to withdraw [from an appeal] where counsel conscientiously examines

a case and determines that any appeal would be wholly frivolous.” United States

v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005). To this end, 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 [c]ourt 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. (citations omitted).

      Mr. Hernandez-Hernandez, a Mexican citizen, was apprehended by the

United States Border Patrol on February 7, 2007, near Hachita, New Mexico. He

was charged in a one-count indictment with unlawful entry by a deported alien.

After he pleaded guilty, the United States Probation Office, applying the 2007

edition of the United States Sentencing Guidelines (USSG), prepared a

presentence report (PSR) for the district court.

      The PSR stated that Mr. Hernandez-Hernandez had previously been

deported after being convicted of Assault with a Deadly Weapon Inflicting

Serious Injury in North Carolina, a felony punishable by a maximum of 30

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months’ imprisonment. He was released from custody on February 1, 2006, and

placed on parole, which expired on August 28, 2007. His base offense level of 8,

see USSG § 2L1.2(a), was increased by 16 because of this prior felony

conviction, see id. § 2L1.2(b)(1)(A). After applying a 2-level reduction for his

acceptance of responsibility, see id. § 3E1.1(a), the PSR calculated his total

offense level to be 22. His criminal-history category was III, based on his prior

felony conviction and his commission of the unlawful entry while on parole and

within two years of his release from custody. See id. § 4A1.1(a), (d), (e). The

PSR recommended the corresponding guideline range of 51 to 63 months’

imprisonment.

      Mr. Hernandez-Hernandez filed a motion in the district court requesting a

variance from the recommended guideline range because it was unreasonable. He

contended that double-counting his prior felony conviction both to enhance his

criminal-history category and to raise his total offense level by 16 would be

unreasonable, and that the court should consider the effect of double-counting his

prior felony conviction when considering the overall reasonableness of his

sentence under 18 U.S.C. 3553(a). He also pointed to the nonviolent nature of the

unlawful-entry offense and the poverty of his childhood. He requested the district

court to sentence him to a term of 12 months and one day. The district court

denied the request and sentenced Mr. Hernandez-Hernandez to 51 months’

imprisonment, the lower end of the recommended guideline range.

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      Counsel’s Anders brief recites Mr. Hernandez-Hernandez’s contention that

the district court erred in failing to sentence him to a term of 12 months and one

day. But our review of the record confirms that there is no meritorious basis for

appeal.

      Accordingly we DISMISS the appeal and GRANT counsel’s motion to

withdraw.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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