                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                  January 27, 2009
                                 TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                    Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 08-2068
          v.                                       District of New Mexico
 IVAN SOTO-ZUNIGA,                            (D.C. No. 2:07-CR-01181-LH-1)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before TACHA, KELLY and McCONNELL, Circuit Judges.


      On July 26, 2007, Ivan Soto-Zuniga pled guilty to violating 8 U.S.C. §

1326(a)(1) & (2) and 1326(b)(2), Re-entry of a Removed Alien Previously

Convicted of an Aggravated Felony. The presentence report (PSR) found that Mr.

Soto-Zuniga had an adjusted offense level of 21 and a criminal history category

of III, yielding a recommended sentence of 46 to 57 months. He was sentenced to

46 months.



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
      Mr. Soto-Zuniga timely appealed his sentence. His counsel, Arturo B.

Nieto, filed an Anders brief and moved to withdraw as counsel. See Anders v.

California, 386 U.S. 738 (1967). The government declined to submit a brief, and

Mr. Soto-Zuniga did not file a brief or other pleadings. Therefore, our resolution

of this case relies on his counsel’s Anders brief and our own independent review

of the record. Because we discern no non-frivolous issues on appeal, we grant

counsel’s motion to withdraw and dismiss the appeal.

      In his objection to the PSR, Mr. Soto-Zuniga raised three major issues.

First, he argued that there was “no documentation” to support the allegation that

he had been convicted of a prior drug trafficking offense. When the

documentation was provided, however, this objection was withdrawn.

Appellant’s Br. 8. Second, he said that the government was in effect “double

counting” his trafficking conviction by using it for his sixteen level enhancement

and by assessing criminal history points for the same conviction. Third, Mr.

Soto-Zuniga asserted that a criminal history category of III over-represented his

criminal history, and that a category of II would more accurately reflect his

history. Because the first objection was withdrawn by Mr. Soto-Zuniga, we

consider here only the latter two issues.

      But we must first make a point about the standard of review in this case.

Counsel for Mr. Soto-Zuniga asserts in his brief that the relevant standard of

review should be “plain error.” Appellee’s Br. 9. We disagree. The plain error

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standard applies to legal objections that were not properly raised below and are

raised for the first time only on appeal. See, e.g., United States v. Ciapponi, 77

F.3d 1247, 1252 (10th Cir. 1996). But in this case, the issues noted in the prior

paragraph were raised before the district court in Mr. Soto-Zuniga’s objection to

the PSR. Accordingly, the relevant standard of review is de novo for legal

questions regarding the application of the guidelines, and we review the court’s

factual conclusions to see if they are “clearly erroneous.” United States v.

Wiseman, 172 F.3d 1196, 1217-18 (10th Cir. 1999).

      In any event, we agree with counsel for Mr. Soto-Zuniga that no non-

frivolous issues are raised here. The supposed problem of “double

counting”—using a conviction both in computing the offense level and in

determining the criminal history category—has been addressed by this court

before. Indeed, we have “consistently held that a defendant's prior record may be

used in determining both sentence enhancements and criminal history category.”

United States v. Ayala-Romero, 239 Fed. App’x 457, 459 (10th Cir. 2007); see

also United States v. Alessandroni, 982 F.2d 419, 421 (10th Cir.1992); United

States v. Florentino, 922 F.2d 1443, 1446 (10th Cir.1990). The district court did

nothing wrong in using the same conviction in separate steps of its sentencing

calculation.

      Mr. Soto-Zuniga also maintained that his criminal history was over-

represented because his two 1997 convictions “followed closely on the heels of

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one another” and the court that convicted him in Arizona “treated [them]

effectively, in terms of punishment, as the same or at least not sufficiently grave

to justify separate sentences.” Sentencing Transcript, R. Vol. III, 4. The district

court resisted the suggestion that these factors should put Mr. Soto-Zuniga into a

lower criminal history category, saying “the idea that an Arizona judge sentenced

him concurrently on two consecutive convictions does not give rise to the

conclusion that there was only one crime. There were two crimes. He was

convicted twice. He was sentenced to serve two sentences for those two crimes

concurrently.” Id. at 5. We do not think, consistent with the district court

judge’s reasoning at sentencing, that Mr. Soto-Zuniga’s criminal history was

“substantially over-represent[ed],” necessitating a downward sentencing

departure. See U.S.S.G. § 4A1.3(b)(1). 1

      Finding no non-frivolous arguments on appeal, we 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

      1
        Mr. Soto-Zuniga also briefly suggested that a sentence of “twelve months
and one day” would be sufficient to adequately deter him from future crimes. R.
Vol. I, 8. The district court did not err in finding this unpersuasive.




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