                                                                              FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                          July 16, 2012
                         UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                          Clerk of Court
                                    TENTH CIRCUIT



 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                            No. 11-3381
 RICARDO ORTEGA-SAUCEDO,                           (D.C. No. 2:11-CR-20050-KHV-1)
                                                               (D. Kan.)
           Defendant-Appellant.



                                 ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.



       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). The case is, therefore,

submitted without oral argument.

       Defendant Ricardo Ortega-Saucedo (Ortega) pled guilty to one count of illegal

reentry of a deported alien after a prior conviction for an aggravated felony, in violation



       *
         This order and judgment is not binding precedent, except under the doctrines of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.
of 8 U.S.C. §§ 1326(a) and (b)(2), and was sentenced to a term of imprisonment of 71

months. On appeal, Ortega’s counsel has filed an Anders brief and a motion to withdraw

as counsel. See Anders v. California, 386 U.S. 738, 744 (1967). Ortega was provided

with a copy of the Anders brief, but has filed no response thereto. The government has

declined to file a brief. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we grant

counsel’s motion to withdraw and dismiss the appeal.

                                              I

       On July 1, 2011, Ortega was indicted by a federal grand jury on one count of

illegal reentry of a deported alien after a prior conviction for an aggravated felony, in

violation of 8 U.S.C. §§ 1326(a) and (b)(2). The indictment alleged that on June 23,

2011, Ortega, an alien, was found to be knowingly and unlawfully in the United States.

The indictment further alleged that Ortega had previously been convicted in Arizona state

court of aggravated assault/domestic violence, and in federal court of illegal reentry after

deportation. Lastly, the indictment alleged that Ortega had “been removed and deported

from the United States on or about June 29, 2006, and [again on] March 21, 2009.” ROA,

Vol. 1, at 6.

       On August 9, 2011, Ortega pleaded guilty to the single count alleged in the

indictment. In accepting Ortega’s plea, the district court expressly found “that the plea of

guilty was made by the defendant freely, voluntarily, and because he . . . is guilty as

charged, and not out of ignorance, fear, inadvertence or coercion, and with full

understanding of its consequences.” Id. at 22.

                                              2
       After Ortega entered his plea, a probation officer prepared and filed with the

district court a presentence investigation report (PSR). The PSR, employing the

November 1, 2011 edition of the United States Sentencing Commission’s Guidelines

Manual, calculated Ortega’s total offense level as 21 and his criminal-history category as

IV, resulting in an advisory guidelines range of imprisonment of 57 to 71 months.

Neither Ortega nor the government objected to the PSR’s findings and recommendations.

       The district court conducted a sentencing hearing on December 13, 2011. Ortega’s

counsel asked the district court “not to go above the low end of the guidelines” range of

imprisonment. ROA, Vol. 2, at 15. The district court rejected that request, however, and

imposed a sentence of “71 months in custody,” to “be followed by two years of

supervised release.” Id. at 16. In doing so, the district court stated:

       I do not think that a sentence at the low end of the guideline range would be
       appropriate given your prior federal conviction for illegal reentry after
       deportation, the crime of violence, and aggravated assault, and at least ten
       prior encounters with the boarder [sic] patrol. But I do think a sentence in
       the guideline range is appropriate. I don’t see anything in this case which
       would take defendant’s circumstances out of the heartland of cases that are
       usually addressed by these guidelines.

Id.

       Judgment was entered in the case on December 15, 2011. Ortega filed a notice of

appeal on December 21, 2011. His counsel has since filed with this court an Anders brief

and a motion to withdraw. Although Ortega was provided with a copy of the Anders

brief, he has filed no response to it.




                                              3
                                             II

       Under Anders, defense counsel may “request permission to withdraw where

counsel conscientiously examines a case and determines that any appeal would be wholly

frivolous.” United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005). In such a

case, “counsel must submit a brief to the client and the appellate court indicating any

potential appealable issues based on the record.” Id. The client is then permitted to

submit arguments to the court in response. We are then obligated to conduct

independently “a full examination of all the proceeding[s] to decide whether the case is

wholly frivolous.” United States v. Snitz, 342 F.3d 1154, 1158 (10th Cir. 2003) (internal

quotations omitted).

       Having conducted such an examination in this case, we agree with Ortega’s

counsel that the appeal is wholly frivolous. The record on appeal establishes that

Ortega’s guilty plea was knowing and voluntary, and neither Ortega nor his counsel assert

otherwise. Turning to the sentencing proceedings, neither Ortega nor the government

objected to the advisory guidelines range calculated by the PSR, which was adopted in

full by the district court. Further, our own review of the record indicates that the advisory

guidelines range was correctly calculated. As for the sentence imposed by the district

court, it was within the advisory guidelines range and was selected by the district court

after consideration of the factors outlined in 18 U.S.C. § 3553(a). Consequently, we

conclude that the sentence imposed was both procedurally and substantively reasonable.

See Gall v. United States, 552 U.S. 38, 51 (2007).

                                             4
Counsel’s motion to withdraw is GRANTED and the appeal is DISMISSED.


                                     Entered for the Court


                                     Mary Beck Briscoe
                                     Chief Judge




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