                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           APR 14 2003
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    UNITED STATES OF AMERICA,

                 Plaintiff-Appellee,

    v.                                                    No. 02-1386
                                                    (D.C. No. 00-CR-205-M)
    BURT F. LAWLOR,                                        (D. Colo.)

                 Defendant-Appellant.


                             ORDER AND JUDGMENT           *




Before TACHA , Chief Judge, PORFILIO and BALDOCK , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

         Defendant Burt F. Lawlor pled guilty to one count of mail fraud and one

count of making a false statement to a financial institution. The parties ultimately



*
      This order and judgment is not binding precedent, except under the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 and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
concurred on appropriate loss/restitution figures, and the government agreed to

request a one-level downward departure for assistance provided by Lawlor under

U.S.S.G. § 5K1.1. Lawlor, however, sought a further departure of two more

levels. At sentencing, the district court adopted the agreed-upon figures and, after

acknowledging its discretion to resolve the competing departure requests, reduced

the offense level by one. As a result, the court imposed two concurrent five-month

terms of imprisonment followed by two concurrent three-year terms of supervised

release (with five months’ home detention), and ordered Lawlor to pay a total of

$27,507.53 in restitution to two financial institutions and one individual victim.

Following the entry of judgment, Lawlor appealed.

       Lawlor’s counsel filed a brief pursuant to   Anders v. California , 386 U.S.

738 (1967), and moved for leave to withdraw from representation, based on his

assessment that there were no grounds for appeal. The brief anticipates several

claims from defendant and summarizes why each is demonstrably meritless: any

objection regarding amount of loss/restitution has been waived,    see United States

v. Overholt , 307 F.3d 1231, 1253 (10 th Cir. 2002), the offense level was correctly

calculated (and, we also note, no relevant objection was preserved at sentencing),

and the district court’s discretionary refusal to depart to the extent requested by

defendant is not subject to appeal,   see United States v. Fortier , 180 F.3d 1217,

1230 (10 th Cir. 1999). We agree with counsel’s assessment of the merits.


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       Lawlor has moved for appointment of new counsel, but has not suggested

how the patent deficiencies pointed out in the    Anders brief could be overcome.

Rather, he baldly asserts that his sentence and restitution “are based on incorrect

facts and assumptions,” without any indication, much less substantiation, of what

contrary facts and inferences should have determined his sentence.

       After a careful review of the record and materials before us, we conclude

there are no grounds for appeal. Accordingly, we GRANT appellate counsel’s

request to withdraw, DENY appellant’s motion for appointment of new counsel,

and DISMISS the appeal.


                                                      Entered for the Court



                                                      Deanell Reece Tacha
                                                      Chief Judge




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