                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                       July 11, 2008
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 07-2187
          v.                                        District of New Mexico
 JESUS HURTADO-FIERRO,                            (D.C. No. 06-CR-1295-BB)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before TACHA, KELLY and McCONNELL, Circuit Judges.


      Defendant-Appellant Jesus Hurtado-Fierro pleaded guilty to a one-count

indictment charging violation of 8 U.S.C. § 1326(b)(1), reentry of a deported

alien previously convicted of a felony, and was sentenced to 41 months in prison.

He timely appealed his sentence. His counsel, Arturo B. Nieto, has filed an

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

U.S. 738 (1967). Mr. Hurtado-Fierro did not file a response. The government

declined to submit a brief. Because we find that neither Mr. Hurtado-Fierro nor




      *
        This order and judgment is not binding precedent, except under the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.
his counsel raises any non-frivolous issues on appeal, we grant counsel’s motion

to withdraw and dismiss the appeal.

      In the plea agreement, the parties initially agreed that the appropriate

offense level under the United States Sentences Guidelines was 9, but in

paragraph 8(a) the government reserved the right to withdraw from the agreement

in the event that the defendant was discovered to have committed a crime of

violence. Subsequently, the probation office found that Mr. Hurtado-Fierro was

convicted in 1995 of violating New Mexico Stat. Ann. § 30-6-1(E), Child Abuse-

Negligently Cause (No Death or Great Bodily Harm), a third degree felony

punishable by up to three years’ imprisonment. Examining the indictment, the

district court found that Mr. Hurtado-Fierro had been charged with the act of

biting or sucking the skin of the child until she bruised, and/or having tortured or

cruelly punished the child. The court concluded that this constituted a crime of

violence, requiring a 16-level increase in the Guideline calculation. See U.S.S.G.

§2L1.2(b)(1)(A). The court sentenced Mr. Hurtado-Fierro to 41 months, the

bottom of the recommended range.

      Having examined the record, including the sentencing transcript and the

underlying state indictment, we conclude that the district court correctly allowed

the government to withdraw from the original plea agreement calling for an

offense level of 9, and that it correctly concluded that Mr. Hurtado-Fierro’s prior




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conviction was for a crime of violence within the meaning of U.S.S.G.

§2L1.2(b)(1)(A). Appellant raises no non-frivolous argument to the contrary.

      We therefore GRANT counsel’s motion to withdraw and dismiss the

appeal. The judgment of the United States District Court for the District of New

Mexico is AFFIRMED.

                                                  Entered for the Court,

                                                  Michael W. McConnell
                                                  Circuit Judge




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