                                                                           F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           OCT 2 2003
                                    TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
                                                       No. 03-1038
 vs.                                              (D.C. No. 02-CR-66-D)
                                                        (D. Colo.)
 JOE GUTIERREZ,

           Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, BRISCOE, and LUCERO, Circuit Judges. **


       Defendant-Appellant Joe Gutierrez appeals following his conviction for

possession of a firearm by a prohibited person in violation of 18 U.S.C.

§ 922(g)(1). Mr. Gutierrez accidentally shot himself while cleaning a gun at his

home and instructed a friend to remove the gun and two others. Counsel for Mr.

Gutierrez has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),

       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
and has moved for leave to withdraw as counsel. In those circumstances, our

local rule contemplates notice to the defendant and 30 days within which he may

raise any challenges to his conviction and sentence. 10th Cir. R. 46.4(b).

Additionally, the Anders brief reflects service on Mr. Gutierrez. No response has

been received. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a), and we dismiss the appeal and grant counsel’s request to withdraw.

      Mr. Gutierriez was charged with possession of a firearm by a prohibited

person, having been convicted previously of a felony. He pled to the offense,

admitting that he was convicted in 1997 in California state court of residential

burglary, a felony. He was sentenced to 70 months imprisonment followed by 36

months of supervised release. In the Anders brief, counsel for Mr. Gutierrez

raises two issues at the behest of Mr. Gutierrez, but concedes that these issues

lack merit. Aplt. Br. at 3-4, 6. In Anders, the Supreme Court held that if

appointed counsel “finds [her] case to be wholly frivolous, after a conscientious

examination of it, [she] should so advise the court and request permission to

withdraw.” 386 U.S. at 744. Where counsel has filed an Anders brief, we must

conduct a “full examination of all the proceedings” to determine if the appeal is

“wholly frivolous.” Id. If we concur in counsel’s evaluation of the case, we may

grant the request to withdraw and dismiss the appeal. Id.

      After a thorough review of the record we conclude there are no meritorious


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issues for appeal. By pleading guilty, Mr. Gutierrez has waived all non-

jurisdictional defenses, and he does not contend that the plea was involuntary and

unintelligent. See United States v. Salazar, 323 F.3d 852, 856 (10th Cir. 2003).

Mr. Gutierrez was convicted of residential burglary, which is first degree burglary

under Cal. Penal Code § 460(a), and punishable “by imprisonment in the state

prison for two, four, or six years.” Cal. Penal Code § 461. Plainly, the burglary

conviction qualifies as a “a crime punishable by imprisonment for a term

exceeding one year.” 18 U.S.C. § 922(g)(1). His argument that his residential

burglary plea was entered before a municipal court judge lacking authority to

accept the plea is of no moment–the fact of his conviction is sufficient, even if

the conviction might be subject to collateral attack. Lewis v. United States, 445

U.S. 55, 65 (1980).

      Mr. Gutierrez also argues that a 1999 Colorado conviction for criminal

mischief should not have been used in calculating his criminal history because his

plea to that offense was uncounseled. This argument is without merit given the

documentary evidence indicating that Mr. Gutierrez waived his right to counsel in

entering the plea to criminal mischief.




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     Accordingly, we DISMISS the appeal and GRANT counsel’s request to

withdraw.

                                  Entered for the Court


                                  Paul J. Kelly, Jr.
                                  Circuit Judge




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