                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                         MAR 24 2000

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk



 UNITED STATES OF AMERICA,

          Plaintiff–Appellee,
                                                       No. 98-4223
 v.
                                                 (D.C. No. 98-CR-106-W)
                                                          (Utah)
 JORGE SANTOS GUERRERO-
 LEON,

          Defendant-Appellant.




                         ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.



      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 cause is

therefore ordered submitted without oral argument.

      Jorge Santos Guerrero-Leon was convicted after a jury trial of one count of

      *
       This order and judgment is not binding precedent, except under the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.
unlawfully reentering the United States after deportation in violation of 8 U.S.C.

§1326 and sentenced to 90 months in prison. He appeals his conviction and

sentence. His appellate counsel has filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), and has moved for leave to withdraw as counsel. We grant

leave to withdraw and dismiss the appeal.

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

conscientious examination, he should so advise the court and request permission

to withdraw. Counsel must in addition submit to both the court and his client a

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

client may then raise any points he chooses, and the appellate 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.

      Mr. Guerrero was convicted after a one-day jury trial at which the

government presented testimony from two witnesses, an official with the INS who

had interviewed Mr. Guerrero after his arrest and an employee with the state

criminal investigation who performs fingerprint identification. Following Mr.

Guerrero’s conviction, a presentence report was prepared, which listed his prior

criminal convictions and calculated his criminal history at category IV and his

total offense level at 24, for a sentencing range of 77 to 96 months imprisonment.


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The district judge denied Mr. Guerrero’s motion for a downward departure and

sentenced him to 90 months.

      In his Anders brief, counsel raises two possible points: (1) the insufficiency

of the evidence to support the conviction and (2) the court’s failure in sentencing

to take into account the fact that Mr. Guerrero was a poor itinerant laborer who

fled his homeland because of extreme poverty.

      We turn first to the sufficiency of the evidence. “To obtain a conviction

under 8 U.S.C. § 1326 for illegal reentry after deportation, the government must

prove the defendant: (1) is an alien; (2) was previously arrested and deported; (3)

was thereafter found in the United States; and (4) lacked the permission of the

Attorney General.” United States v. Anaya, 117 F.3d 447, 449 (10th Cir. 1997).

We have carefully reviewed the trial transcript in this case and we conclude that it

contains ample evidence to support all the elements of the offense. The INS

officer who interviewed Mr. Guerrero after his arrest testified that Mr. Guerrero

had admitted all of the elements, and they were also established independently

through fingerprints and documentary evidence.

      In addressing the propriety of Mr. Guerrero’s sentence, we begin with Mr.

Guerrero’s pro se letter to this court asserting that the presentence report erred in

calculating his criminal history level by improperly adding three points for a

criminal proceeding that was dismissed. In support of this claim, Mr. Guerrero


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has attached a copy of a state court criminal record charging Jorge Santos

Guerrero with theft by receiving stolen property. The crime was apparently

committed on December 27, 1988, Mr. Guerrero pled not guilty on April 3, 1989,

and the charge was dismissed on August 28, 1989.

      The only criminal disposition in 1989 listed in the presentence report is one

for possession of stolen property. The presentence report shows that Mr.

Guerrero was arrested on January 2, 1989, as a probation fugitive. A search

incident to this arrest produced several thousand dollars worth of stolen property.

It appears that at the time of this arrest Mr. Guerrero was a probation fugitive on

a state drug charge for which he had received a prison sentence of 0-5 years,

which had been stayed, and 18 months probation. The presentence report did not

originally assign any criminal history points to this conviction. Upon Mr.

Guerrero’s arrest as a probation fugitive and the discovery of the stolen property

in his possession, his probation was revoked and he was sent to prison on the

earlier sentence of 0-5 years. At this point, the presentence report assigned three

criminal history points. Even assuming that the dismissed state court theft charge

was based on the same events that resulted in the revocation of Mr. Guerrero’s

probation, the three criminal history points were given not on the dismissed

charge but on the sentence of imprisonment imposed on the earlier drug

conviction after Mr. Guerrero was arrested as a probation fugitive and his prison


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sentence reinstated. 1

      Finally, we consider the argument that the district court erred in denying

Mr. Guerrero’s request for a downward departure on the ground of his extreme

poverty. We are without jurisdiction to review a sentencing court’s refusal to

depart downward unless “the district court states that it does not have any

authority to depart from the sentencing guideline range for the entire class of

circumstances proffered by the defendant.” United States v. Castillo, 140 F.3d

874, 887 (10th Cir. 1998). We cannot tell from the record we have whether the

sentencing court here denied the requested departure on the basis of Mr.

Guerrero’s particular circumstances, a decision we are without jurisdiction to

review, or whether the court concluded that extreme poverty cannot in any

circumstances support a departure, a ruling that we may address on appeal.

      Assuming the district court’s decision is reviewable, we find no error.

After Mr. Guerrero was sentenced, this court addressed a district court’s decision

to depart downward on the ground that the “[d]efendants were poor and desperate

for money.” United States v. Dominguez-Carmona, 166 F.3d 1052, 1058 (10th

Cir. 1999). We held the district court’s decision to depart erroneous, pointing out



      1
         The transcript of the sentencing proceeding is not included in the record
on appeal. We therefore cannot ascertain whether Mr. Guerrero raised this factual
issue at sentencing and preserved it for appeal. As discussed in text, the material
that we do have shows this claim to be without merit in any event.

                                        -5-
that “[i]t is well established that socioeconomic status is ‘not relevant in the

determination of a sentence.’” Id. (quoting U.S.S.G. § 5H1.10).

      After reviewing the entire proceedings, we conclude that the record

establishes no non-frivolous ground for appeal. The appeal is therefore

DISMISSED and counsel’s motion to withdraw is GRANTED.

                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Chief Judge




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