                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              NOV 2 2004
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                        No. 04-2089
                                                            (D. N.M.)
 JOSE LUIS ESPINOZA-PINTO,                         (D.Ct. No. CR-03-2166-RB)

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, and PORFILIO and BRORBY, Senior
Circuit Judges.



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

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is

therefore ordered 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          This order and judgment is not binding precedent except under the doctrines of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. 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.
      Appellant Jose Luis Espinoza-Pinto, a federal prisoner represented by

counsel, pled guilty to one count of reentry of a deported alien previously

convicted of an aggravated felony, in violation of 8 U.S.C. § 1326(a)(1) and (2)

and (b)(1). The district court sentenced Mr. Espinoza-Pinto to forty-one months

imprisonment followed by two years supervised release. Pursuant to an Anders

brief filed by his counsel, Mr. Espinoza-Pinto appeals the district court’s

sentence. See Anders v. California, 386 U.S. 738, 744 (1967). Pursuant to 18

U.S.C. § 3742, we decline to review the appeal of Mr. Espinoza-Pinto’s sentence,

and accordingly, dismiss his appeal.



      After Mr. Espinoza-Pinto pled guilty, the probation officer prepared a

presentencing report in which he calculated Mr. Espinoza-Pinto’s sentence,

determining: 1) his base offense level was 8, pursuant to United States

Sentencing Guideline §2L1.2(a); 2) the base level should be increased sixteen

levels to 24, pursuant to Sentencing Guideline §2L1.2(b)(a)(A)(ii), because he

had been deported following conviction for an aggravated felony that was a crime

of violence; 3) he should receive a three-level reduction for acceptance of

responsibility, pursuant to Sentencing Guideline §3E1.1; and 4) the total offense

level should be 21. Based on Mr. Espinoza-Pinto’s prior criminal history,

including a prior felony conviction for second-degree robbery, the probation


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officer calculated his criminal history level at II, resulting in a guideline

sentencing range of forty-one to fifty-one months imprisonment. At sentencing,

the district court followed the recommendations contained in the presentencing

report and sentenced Mr. Espinoza-Pinto at the low end of the applicable

guideline range to forty-one months imprisonment.



      After Mr. Espinoza-Pinto filed a timely notice of appeal, his counsel filed

an Anders appeal brief, alleging no meritorious appellate issues exist and

requesting an order permitting him to withdraw as counsel. See Anders, 386 U.S.

at 744. Specifically, his counsel points out the district court sentenced Mr.

Espinoza-Pinto within the applicable guideline range, including the correct

offense level and criminal history category. As a result, he suggests this court

lacks jurisdiction to review the sentencing decision because the district court did

not erroneously apply the guidelines or sentence Mr. Espinoza-Pinto in violation

of the law. Pursuant to Anders, this court gave Mr. Espinoza-Pinto an opportunity

to raise points in response to the Anders brief, to which he responded, claiming he

“waived [his] deportation” at the immigration hearing without knowledge of his

rights under the Immigration and Naturalization Act. Id. However, his motion

clearly omits facts or information in support of his claim.




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       Under 18 U.S.C. § 3742(a), a sentence which falls within the Sentencing

Guidelines cannot be successfully appealed unless it is imposed in violation of

law, as a result of an incorrect application of the Guidelines, or is otherwise

premised on facial illegality, improper calculations, or clearly erroneous fact

findings. See United States v. Garcia, 919 F.2d 1478, 1479, 1481 (10th Cir.

1990) (relying on 18 U.S.C. § 3742(a)(1) and (2)). In other words, we will not

review an appeal concerning a sentence which the defendant has not shown meets

these criteria.



       With these principles in mind and after a careful review of the record

concerning Mr. Espinoza-Pinto’s sentence, it is clear he has not shown the district

court imposed his sentence in violation of law or as a result of an incorrect

application of the Sentencing Guidelines, or that his sentence is otherwise

improper under 18 U.S.C. § 3742. Instead, Mr. Espinoza-Pinto’s sentence falls

within the appropriate guideline range, and as his counsel points out, he was

sentenced at the bottom of the applicable guideline range, about which he cannot

complain. In addition, Mr. Espinoza-Pinto’s pro se argument concerning his

initial deportation hearing does not otherwise establish that his sentence is

improper under § 3742. Because the criteria to appeal a sentence under 18 U.S.C.

§ 3742(a) has not been met, we decline to review Mr. Espinoza-Pinto’s appeal of


                                          -4-
his sentence. Accordingly, we grant counsel’s request to withdraw and dismiss

Mr. Espinoza-Pinto’s appeal.



                                     Entered by the Court:

                                     WADE BRORBY
                                     United States Circuit Judge




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