                                                                         F IL E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    U N IT E D ST A T E S C O U R T O F A PP E A L S
                                                                       September 14, 2006
                                 T E N T H C IR C U IT
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court

 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                       No. 06-2036
          v.                                             (D. New M exico)
 EN RIQ U E PER EZ-ELV IR A,                        (D.C. No. CR -05-2224-JP)

               Defendant - Appellant.



                            O R D E R A N D JU D G M E N T *


Before T A C H A , A N D ER SO N , and B R O R B Y , Circuit Judges.




      After examining the briefs and appellate record, this panel has determ ined

unanim ously that oral argum ent would not m aterially assist in the determ ination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered subm itted without oral argum ent.

      Defendant-appellant Enrique Perez-Elvira pled guilty to one count of illegal

reentry by a deported alien previously convicted of a felony, in violation of



      *
       This order and judgment is not binding precedent, except under the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.
8 U .S.C. § 1326(a)(1), (a)(2) and (b)(1). He was sentenced to eighteen m onths’

im prisonm ent, followed by three years of supervised release. He has filed a

tim ely appeal, challenging only his sentence.

      Perez-Elvira’s appointed counsel, M ario Carreon, has filed an Anders brief

and moved to withdraw as counsel. See Anders v. California, 386 U.S. 738

(1967). Perez-Elvira has not filed a response, and the governm ent has declined to

file a brief. W e therefore base our conclusion on counsel’s brief and our own

review of the record. For the reasons set forth below, we agree with M r. Carreon

that the record in this case provides no nonfrivolous basis for an appeal, and w e

therefore grant his m otion to withdraw and dism iss this appeal.




                                 BACKGROUND

      The record does not reveal the facts giving rise to the instant conviction.

However, Perez-Elvira does not challenge his conviction. Rather, as indicated, he

challenges only his eighteen-m onth sentence.

      For the purpose of calculating an appropriate sentence under the United

States Sentencing Com m ission, Guidelines M anual (“USSG ”), the United States

Probation Office prepared a presentence report (“PSR”). The PSR determ ined

that Perez-Elvira’s base offense level was eight. That base offense level was then

adjusted upward four levels because Perez-Elvira had a prior felony conviction,




                                         -2-
and then downward two levels for acceptance of responsibility, resulting in an

adjusted offense level of ten.

      In calculating his crim inal history score, the PSR added two crim inal

history points for a prior m isdemeanor conviction for driving while under the

influence and driving without a license; one crim inal history point for another

prior m isdemeanor conviction for driving on a suspended license; two crim inal

history points for another prior conviction; one crim inal history point for a prior

felony conviction for possession of burglary tools, providing false identification

to a peace officer and receiving stolen property; one crim inal history point for a

prior felony conviction for possession of a controlled substance; two crim inal

history points for a prior felony conviction for unlawful taking of a vehicle; two

crim inal history points for comm itting the instant offense while under a crim inal

justice sentence for the unlawful taking of a vehicle conviction; and one crim inal

history point for comm itting the instant offense within two years of being

released from custody on the unlawful taking of a vehicle conviction.

Accordingly, with twelve crim inal history points, Perez-Elvira was placed in

crim inal history category V which, with an offense level of ten, yielded a

recom m ended G uideline sentencing range of twenty-one to twenty-seven m onths.

      At his sentencing hearing, Perez-Elvira argued, pursuant to USSG

§4A1.3(b)(1), that crim inal history category V seriously over represented the

seriousness of his criminal history. The governm ent agreed and the district court

                                          -3-
reduced his crim inal history category to IV. This yielded a Guideline sentencing

range of fifteen to twenty-one m onths. The court then sentenced Perez-Elvira to

eighteen m onths.




                                    D ISC U SSIO N

      Under Anders, “counsel [m ay] request perm ission to withdraw [from an

appeal] where counsel conscientiously examines a case and determ ines that any

appeal would be wholly frivolous.” United States v. Calderon, 428 F.3d 928, 930

(10th Cir. 2005) (citing Anders, 386 U.S. at 744). This process requires counsel

to

      subm it a brief to the client and the appellate court indicating any
      potential appealable issues based on the record. The client m ay then
      choose to subm it argum ents to the court. The [c]ourt m ust then
      conduct a full examination of the record to determ ine whether
      defendant’s claim s are wholly frivolous. If the court concludes after
      such an examination that the appeal is frivolous, it m ay grant
      counsel’s m otion to withdraw and m ay dism iss the appeal.

Id. (citing Anders, 386 U.S. at 744). As indicated, Perez-Elvira’s counsel has

filed his Anders brief, to which neither Perez-Elvira nor the governm ent has

responded.

      W e agree with counsel that there is no nonfrivolous issue related to the

district court’s application of the Guidelines. 1 The district court stated that it had


      1
          Counsel argues we lack jurisdiction to hear an appeal from a sentence
                                                                        (continued...)

                                           -4-
considered the sentencing factors contained in 18 U.S.C. § 3553(a). W hile the

district court did not specifically address whether there was a basis for

disregarding the advisory Guidelines and exercising its discretion to sentence

outside of the advisory Guideline range, it is hard to imagine why the court would

do so, given Perez-Elvira’s considerable crim inal history. W hile we encourage

district courts to explicitly refer to the sentencing factors set forth in 18 U.S.C.

§ 3553(a), “[w]e will ‘not dem and that the district court recite any m agic w ords to

show us that it fulfilled its responsibility.’” United States v. M ares, 441 F.3d

1152, 1161 (10th Cir. 2006) (quoting United States v. Contreras-M artinez, 409

F.3d 1236, 1242 (10th Cir. 2005) (further quotation om itted)). W e conclude from

our review of the record that there is no indication that the district court failed to

consider the appropriate factors, or that the presum ption of reasonableness arising

from the im position of a sentence within the Guideline range, see United States v.

K ristl, 437 F.3d 1050, 1054 (10th Cir. 2006) (per curiam ), could be overcom e

based on the facts of this case.




      1
       (...continued)
imposed with the Guideline range. W hile counsel is mistaken in that view , he is
correct in his acknowledgment that there are no viable grounds for appealing the
sentence imposed.

                                           -5-
                               C O N C L U SIO N

      For the foregoing reasons, counsel’s m otion to withdraw is GRANTED and

this appeal is D ISM ISSED .




                                            ENTERED FOR THE COURT


                                            Stephen H. Anderson
                                            Circuit Judge




                                      -6-
