                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  January 27, 2016
                      UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                   TENTH CIRCUIT                    Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                     No. 15-1201
                                               (D.C. No. 09-CR-00426-PAB-1)
 RONALD ROMERO,                                           (D. Colo.)

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


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


      Defendant-Appellant Ronald Romero appeals from the sentence of 21

months’ imprisonment for the violation of his supervised release conditions. Mr.

Romero’s attorney filed a brief and motion to withdraw following Anders v.

California, 386 U.S. 738 (1967). We have jurisdiction pursuant to 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(a). We dismiss the appeal and grant counsel’s


      *
        This order and judgment is not binding precedent, except under the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.
      **
         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.
motion to withdraw.



                                    Background

      Mr. Romero was convicted of assaulting a federal officer, 18 U.S.C.

§ 111(a)(1) & (b), and sentenced to a term of 51 months’ imprisonment followed

by three years’ supervised release. For this sentence only, the court departed

from criminal history category II to VI. The judgment was affirmed on direct

appeal. United States v. Romero, 442 F. App’x 399 (10th Cir. 2011).

      Mr. Romero began his supervised release on November 14, 2013. In

violation of the conditions imposed, he used alcohol to excess on January 4, 2014.

The magistrate judge warned Mr. Romero that this behavior was in violation of

the conditions imposed and would not be tolerated. Mr. Romero again violated

his supervised release conditions on March 1, 2014, and eventually pled guilty to

burglary, menacing, and assault in state district court. For these offenses, Mr.

Romero was sentenced to five years’ imprisonment on the burglary count (and

lesser concurrent terms on the other offenses) followed by three years of

mandatory parole.

      Mr. Romero admitted to the violations of his supervised release alleged by

his federal probation officer. He was then sentenced to an additional 21 months’

imprisonment, consecutive to the state sentence with no additional term of

supervised release.

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      Mr. Romero’s advisory guideline range was 15–21 months for the violation

of his supervised release condition. To reach this guideline range, the court

placed him in criminal history category II. The government argued for an upward

departure to criminal history category of VI, although it recognized that the

maximum sentence the court could impose for the underlying Class C felony was

two years. 18 U.S.C. § 3583(e)(3). Mr. Romero filed a sentencing memorandum

requesting a consecutive sentence at the bottom of the guideline range, noting that

he had been incarcerated for most of the last eight years without assaultive

behavior. 1 R. 70–71. At the revocation hearing, Mr. Romero noted that counsel

did not include his request for a sentence concurrent with the state sentence. The

district court denied the government’s motion for a non-guideline sentence,

finding that Mr. Romero had made some progress in controlling his behavior, was

getting older, and wanted to change. 3 R. 23–25. Weighing the parties’ requests,

the district court sentenced Mr. Romero at the top of the guideline range and ran

the sentence consecutive to the state court sentence.



                                    Discussion

      In Anders, the Supreme Court explained that “if counsel finds his case to be

wholly frivolous, after a conscientious examination of it, he should so advise the

court and request permission to withdraw.” 386 U.S. at 744. Mr. Romero’s

counsel has done so, and Mr. Romero has responded. Pursuant to Anders, we

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conduct an independent review to decide whether any claim Mr. Romero might

raise has merit. Id.

      We review the reasonableness of a district court’s sentence using an abuse

of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). When the

review is of a sentence imposed after the revocation of supervised release, we

accept factual findings unless clearly erroneous and give de novo consideration to

legal conclusions. United States v. Tsosie, 376 F.3d 1210, 1217–18 (10th Cir.

2004). There is a presumption of reasonableness that attaches to a sentence

within the range suggested by the Sentencing Guidelines. United States v.

McBride, 633 F.3d 1229, 1233 (10th Cir. 2011). Because Mr. Romero admitted

to the violations of his supervised release and did not object to the revocation or

request to withdraw the admission, only plain error review is available on appeal.

See United States v. Fay, 547 F.3d 1231, 1234 (10th Cir. 2008).

      Nothing in the record suggests that the court incorrectly calculated or

applied the guidelines range, failed to consider the 18 U.S.C. § 3553(a) factors,

relied on clearly erroneous facts, or ignored the policy statements in Chapter 7 of

the Sentencing Guidelines. See Gall, 552 U.S. at 51. Mr. Romero alleges that he

was incorrectly placed into criminal history category VI and that he signed a plea

deal limiting his sentence to 12 months. As previously stated, although the

government recommended Mr. Romero be placed in criminal history category VI,

the court placed him in criminal history category II after carefully weighing a

                                         -4-
variety of factors. Furthermore, although Mr. Romero did sign a plea deal as to

the underlying convictions in which he admitted to the excessive use of alcohol,

burglary, menacing, and third-degree assault, 3 R. 7–9, there is no indication Mr.

Romero signed a plea agreement in regard to the revocation of his supervised

release.

      For the foregoing reasons, we DISMISS the appeal and GRANT counsel’s

motion to withdraw.

                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




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