                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                      UNITED STATES COURT OF APPEALS December 26, 2007
                                                                  Elisabeth A. Shumaker
                                   TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 07-2002
 v.                                                 (D.C. No. CR-06-1765)
                                                           (D.N.M.)
 JOSE ANTONIO ZAVALA-CRUZ,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, MURPHY, and O’BRIEN, Circuit Judges. **


      Defendant-Appellant Jose Antonio Zavala-Cruz pleaded guilty to reentery

of a deported alien previously convicted of an aggravated felony. See 8 U.S.C. §§

1326(a)(1), (2) & (b)(2). He was sentenced to 60 months’ imprisonment followed

by supervised release for a term of two years’ unsupervised, with the special

condition that he not reenter the United States without legal authorization. The


      *
        This order and judgment is not binding precedent, except under the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.
district court also recommended that the Immigration Customs Enforcement

agency begin removal proceedings during service of the sentence. On appeal, Mr.

Zavala-Cruz’s counsel has filed an Anders brief because he identified no

potentially meritorious issues for appeal. See Anders v. California, 386 U.S. 738

(1967). Mr. Zavala-Cruz was served with a copy of the Anders brief, see 10th

Cir. R. 46.4(B)(2), but failed to respond notwithstanding that his request for an

extension of time to file a response was granted. The government determined no

response was necessary. Our jurisdiction arises under 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a), and we dismiss the appeal and grant counsel’s motion to

withdraw.

      Following Mr. Zavala-Cruz’s guilty plea, a presentence investigation report

(“PSR”) was prepared. Based on a total offense level of 21, and a criminal

history category of V, the PSR calculated the applicable United States Sentencing

Guidelines (“Guidelines”) sentencing range to be 70-87 months’ imprisonment.

Mr. Zavala-Cruz did not object to the calculation of the Guideline range,

however, at sentencing Mr. Zavala-Cruz essentially requested a downward

variance to 57 months’ imprisonment based upon a dated (1991) conviction used

to calculate the Guidelines sentence. The district court granted a downward

variance and sentenced Mr. Zavala-Cruz to 60 months’ imprisonment.

      We agree with Mr. Zavala-Cruz’s counsel that there exist no potentially

meritorious issues on appeal. In his Anders brief, Mr. Zavala-Cruz’s counsel

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identifies two issues that could arguably support an appeal, namely whether Mr.

Zavala-Cruz’s plea was anything other than knowing and voluntary, and whether

his sentence was reasonable in light of the factors expressed in 18 U.S.C. §

3553(a). Nothing in the record leads us to believe that Mr. Zavala-Cruz’s plea

was anything but knowing and voluntary, see Brady v. United States, 397 U.S.

742, 755-56 (1970), or that Mr. Zavala-Cruz’s sentence, which fell below the low

end of the correctly-calculated and presumptively reasonable Guideline range, see

Rita v. United States, 127 S.Ct. 2456, 2462-63 (2007); United States v. Kristl,

437 F.3d 1050, 1055 (10th Cir. 2006), was unreasonable. In addition, the district

court adequately considered the 3553(a) factors in determining Mr. Zavala-Cruz’s

sentence. See United States v. Jarrillo-Luna, 478 F.3d 1226, 1230 (10th Cir.

2007).

         Accordingly, we DISMISS this appeal and GRANT counsel’s motion to

withdraw.



                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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