                                                                        F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        July 13, 2006
                                 TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                      Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,                      No. 05-2229
          v.                                            (D. of N.M .)
 ENRIQU E GU TIERREZ,                           (D.C. No. CR 04-1381-JEC)

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before TA CH A, Chief Judge, HA RTZ, and TYM KOVICH, Circuit Judges. **




      Enrique Gutierrez, appearing pro se, appeals his sentence for violation of

supervised release, which was set to run consecutively to his sentence for

possession with intent to distribute marijuana. He contends the district court

should have set these sentences to run concurrently. Taking jurisdiction pursuant

to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we AFFIRM .


      *
         This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order 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.
                                  I. Background

      G utierrez w as convicted for drug conspiracy in federal court in 1999. He

was sentenced to 295 days imprisonment with five years of supervised release to

follow. His term of supervised release began on October 20, 2000.

      On M arch 27, 2004, while Gutierrez was still on supervised release, he was

again arrested and charged with various federal crimes, including possession with

intent to distribute 100 kilograms or more of marijuana. Because possession of a

controlled substance also constituted a violation of a mandatory condition of his

release, the probation officer filed a petition to revoke his term of supervision.

Gutierrez pleaded guilty to one count of possession with intent to distribute and

separately admitted the supervised release violation.

      On July 11, 2005, the district court conducted a sentencing hearing on both

matters. For the 2004 drug offense, the court sentenced him to 80 months

imprisonment and a supervised release term of four years. For the supervised

release violation, the court revoked Gutierrez’s term of supervision and

resentenced him. Before the court issued this second sentence, how ever, defense

counsel asked the court to exercise its discretion and run Gutierrez’s two

sentences concurrently, or at least partially concurrently, instead of consecutively.

Specifically, counsel stated,

      Of course, the [G]uidelines are now advisory, but even prior to
      that, the recommendations as to supervised release sentences
      were considered advisory, so the Court has broad discretion. The

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      Court obviously can run all of the supervised release term
      concurrent with the other sentence. . . . If the Court would not
      be inclined to run the whole term of supervised release
      concurrent, of course the Court has many options, including the
      possibility of running half of it concurrent. And I’ve seen that
      done before, as well, Your Honor. But of course the C ourt has
      discretion.

Sent. Tr. at 7–8.

      The court declined the defendant’s request and sentenced him to 18 months

imprisonment, to run consecutively with the sentence for his new drug crime.

      Gutierrez’s trial counsel filed a notice of appeal at the request of his client

but subsequently moved to withdraw, filing a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), attesting to his belief that the record contained

no error on which to base an appeal. Accordingly, Gutierrez filed a pro se brief

arguing the district court erred by imposing a consecutive, rather than concurrent,

sentence.

                                   II. Discussion

      In Anders, the Supreme Court set forth the procedure that an appointed

attorney must follow if he seeks to withdraw from an appeal based on his

conclusion that the appeal has no merit:

      [I]f counsel finds his [client’s] case to be wholly frivolous,
      after a conscientious examination of it, he should so advise
      the court and request permission to withdraw. That
      request must, however, be accompanied by a brief
      referring to anything in the record that might arguably
      support the appeal. A copy of counsel’s brief should be



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      furnished the indigent and time allow ed him to raise any
      points that he chooses.

Id. at 744. Ultimately, however, we— not counsel— “decide whether the case is

wholly frivolous” after our own “full examination of all the proceedings.” Id.

      In this case, Gutierrez has filed a pro se brief, arguing that the district court

should have run his sentences concurrently pursuant to a pre-2003 version of the

Guidelines. Although w e recognize there may be some merit to this question as a

legal matter, see USSG § 1B1.11, the argument is ultimately unpersuasive

because, even if we found error below, we would also have to conclude it was

invited by the defense.

      “It is fundamental that ‘a defendant cannot complain of error which he

invited upon himself.’” See United States v. Cutler, 948 F.2d 691, 697 (10th Cir.

1991). Gutierrez, through counsel, informed the court that it had broad discretion

to impose a concurrent, partially concurrent, or consecutive sentence. Gutierrez

emphasized that, even before Booker rendered the Guidelines advisory, this

matter w as entirely within the purview of the court. However, after the court

exercised its discretion to impose consecutive sentences, Gutierrez argued on

appeal that the court erred by not following a provision in an older version of the

Guidelines, which, prior to Booker, would have mandated concurrent sentences.

Putting aside the obvious point that all G uidelines provisions are now advisory in




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light of Booker, Gutierrez cannot challenge the court’s decision to exercise broad

discretion when that is exactly what he asked the court to do.

                                  III. Conclusion

      For the foregoing reasons, we GRANT counsel’s motion to withdraw and

DISM ISS the appeal.


                                              Entered for the Court


                                              Timothy M . Tymkovich
                                              Circuit Judge




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