                                                                       FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                    UNITED STATES COURT OF APPEALS                May 6, 2013
                                                              Elisabeth A. Shumaker
                                 TENTH CIRCUIT                    Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 12-5197
          v.                                 (D.C. No. 4:12-CR-00123-GKF-1)
 HUGO ROSAS-GONZALEZ, a/k/a                             (N.D. Okla.)
 Hugo Rosas, a/k/a Abelino Rosas-
 Inojosa,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, and ANDERSON and TYMKOVICH, 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 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       This order and judgment is not binding precedent, except under the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. 32.1.
      Defendant and appellant, Hugo Rosas-Gonzalez, seeks to appeal his

conviction following his plea of guilty to being an alien in the United States

following an earlier deportation, in violation of 8 U.S.C. § 1326(a) and (b)(1).

His appointed counsel, Julia L. O’Connell, has filed an Anders brief and has

moved to withdraw as counsel. See Anders v. California, 386 U.S. 738 (1967).

Mr. Rosas-Gonzalez has not filed any response to his counsel’s motion, and the

government has declined to file a brief. We therefore base our conclusions in this

case on counsel’s brief and our own careful review of the record. For the reasons

set forth below, we agree with Ms. O’Connell that the record in this case provides

no nonfrivolous basis for an appeal, and we therefore grant her motion to

withdraw and dismiss this appeal.



                                 BACKGROUND

      As charged by Indictment, on or about June 27, 2012, Mr. Rosas-Gonzalez,

a citizen of Mexico, was found in the United States after having been previously

deported to Mexico on or about December 10, 2011. He had not obtained the

consent of the Secretary of Homeland Security to re-enter this country, and was

therefore in violation of 8 U.S.C. § 1326(a) and (b)(1). Mr. Rosas-Gonzalez

eventually pled guilty without a plea agreement.

      In preparation for sentencing under the advisory United States Sentencing

Commission, Guidelines Manual (“USSG”), the United States Probation Office

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prepared a presentence report (“PSR”). After calculating a total offense level of

ten, with a criminal history category of IV, the PSR recommended an advisory

Guidelines range of fifteen to twenty-one months’ imprisonment. Neither party

challenged the PSR. The district court sentenced Mr. Rosas-Gonzalez to eighteen

months’ imprisonment. In a related case, the district court imposed a six-month

sentence to run consecutively to the eighteen-month sentence. 1 This appeal

followed.



                                  DISCUSSION

      In Anders, the Supreme Court held that if a defendant’s counsel “finds [the

defendant’s] case to be wholly frivolous, after a conscientious examination of it,

[s]he should so advise the court and request permission to withdraw.” Anders,

386 U.S. at 744. Counsel must submit to both the court and [her] client a “brief

referring to anything in the record that might arguably support the appeal.” Id.

The defendant may then “raise any points that he chooses.” Id.

      The reviewing court must examine all the proceedings to determine whether

the appeal is frivolous. Id. If the court so finds, it may grant defense counsel’s

request to withdraw and dismiss the appeal. Id. “On the other hand, if it finds


      1
        Because Mr. Rosas-Gonzalez was on supervised release for another
offense when he was discovered to be illegally in this country, he was convicted
of violating his supervised release. The six-month sentence was imposed for
violating the terms of his supervised release.

                                         -3-
any of the legal points arguable on their merits (and therefore not frivolous) [the

reviewing court] must, prior to decision, afford the indigent [defendant] the

assistance of counsel to argue the appeal.” Id.

      Counsel sums up her position with respect to any prospect of appeal as

follows:

      The district court complied with [Fed. R. Civ. P.] 11’s requirement in
      the course of the plea colloquy, and confirmed that Mr. Rosas-
      Gonzalez understood the rights he was waiving and the basic
      sentencing procedures. As for the procedural or substantive
      reasonableness of the sentence, counsel has not identified any basis
      for arguing that the Sentencing Guidelines calculations were
      erroneous, or that the sentence at the midpoint of the Guidelines
      range was unreasonably high. No motion for downward departure or
      variance was submitted by the defense, nor was any substantial
      mitigating factor identified and presented. Counsel submits that
      there is no viable appellate issue in this case.

Appellant’s Br. at 4. We agree completely with that assessment. We have

carefully reviewed the entire record and can discern nothing forming the basis for

an appeal.



                                  CONCLUSION

      We agree with Mr. Rosas-Gonzalez’s counsel that no meritorious basis

exists to appeal either his conviction or his sentence. We therefore GRANT his

counsel’s motion to withdraw, and DISMISS this appeal.

                                               ENTERED FOR THE COURT

                                               Stephen H. Anderson
                                               Circuit Judge

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