                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                    UNITED STATES CO URT O F APPEALS
                                                                 September 7, 2007
                                                   Elisabeth A. Shumaker
                             TENTH CIRCUIT             Clerk of Court



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

               Plaintiff-Appellee,                       No. 06-4076
          v.                                               (D. Utah)
 M IGU EL AV ALO S-VA SQUEZ,                     (D.C. No. 2:04-CR-708-JTG)

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before KELLY, M U RPH Y, and O'BRIEN, 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(G). The case is

therefore ordered submitted without oral argument.

      M iguel Avalos-V asquez pleaded guilty to one count of conspiracy to

distribute fifty grams or more of actual methamphetamine, in violation of 21

U.S.C. § 841(a)(1) and (b)(1)(A). Applying the United States Sentencing


      *
        This order and judgment is not binding precedent except under the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.
Guidelines, the Presentence Report (“PSR”) recommended a total offense level of

thirty-one and a criminal history category of II, resulting in an advisory guideline

range of 121 to 151 months. The district court granted Avalos-Vasquez a one-

month downward variance and sentenced him to 120 months’ imprisonment, the

mandatory minimum sentence required under 21 U.S.C. § 841(b)(1)(A).

      Although the final judgment was entered on February 9, 2006, Avalos-

Vasquez’s notice of appeal was not filed until M arch 22, 2006. Pursuant to

Federal Rule of Appellate Procedure 4(b)(1)(A), a defendant’s notice of appeal

generally must be filed within ten days after the entry of judgment. Under Rule

4(b)(4), however, a district court may grant an extension of up to thirty days

“[u]pon a finding of excusable neglect or good cause.” Because Avalos-Vasquez

filed the notice of appeal outside the ten-day period required by Rule 4(b)(1)(A),

but within the thirty-day extension period permitted by Rule 4(b)(4), this court

partially remanded the case to the district court for a determination as to whether

Avalos-V asquez could establish excusable neglect or good cause. See United

States v. Espinosa-Talamantes, 319 F.3d 1245, 1246 (10th Cir. 2003); United

States v. Lucas, 597 F.2d 243, 245-46 (10th Cir. 1979).

      On remand, the district court found there was excusable neglect and issued

an order granting the thirty-day extension on this basis. See United States v.

M cM illan, 106 F.3d 322, 324 (10th Cir. 1997) (“[A] defendant who filed his

notice of appeal within the Rule 4(b) thirty-day extension period may obtain relief

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by showing excusable neglect notwithstanding his failure to file a motion seeking

such relief within that same time frame.”). After reviewing the district court

order, this court concludes the district court did not abuse its discretion in so

finding. See United States v. Vogl, 374 F.3d 976, 981 (10th Cir. 2004) (reviewing

a finding of excusable neglect for a “clear abuse of discretion” (quotation

omitted)). Thus, the notice of appeal was timely filed and this court has

jurisdiction over this appeal. M cM illan, 106 F.3d at 324.

      Avalos-Vasquez’s counsel filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), and moved to withdraw on the ground that there are no non-

frivolous issues to be raised on appeal. Under Anders, 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. Id. This court must then fully examine the

record “to determine whether defendant’s claims are wholly frivolous.” Id. If so,

this court may grant counsel’s motion to withdraw and dismiss the appeal. Id.

      In this case, Avalos-Vasquez was given notice of the Anders brief and

counsel’s motion to withdraw, but did not file a response or a brief of his own.

Nor did the government choose to file a brief in response, instead simply

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notifying this court by letter that it did not intend to file a brief “because the

appeal is patently frivolous.” As a consequence, the resolution of this appeal is

based on counsel’s Anders brief and this court’s independent review of the record.

In his Anders brief, counsel states only that Avalos-V asquez is dissatisfied with

the sentence imposed by the district court. Counsel, however, asserts the sentence

was proper and an appeal of the sentence would therefore be frivolous. After an

independent review of the record, this court agrees with counsel that there are no

non-frivolous issues to be raised in this appeal.

      Avalos-V asquez pleaded guilty to conspiracy to distribute more than fifty

grams of actual methamphetamine, a conviction which carries a statutory

mandatory minimum of 120 months. 21 U.S.C. §§ 841(b)(1)(A)(viii), 846. In the

plea agreement and again at the change of plea hearing, Avalos-Vasquez admitted

to conspiring to distribute quantities of methamphetamine well in excess of the

fifty grams required to trigger the ten-year mandatory minimum. The district

court then imposed a sentence equal to the statutory minimum. Based on the facts

admitted by Avalos-Vasquez in his guilty plea, the district court could not have

imposed a sentence any lower than it did. See United States v. Payton, 405 F.3d

1168, 1173 (10th Cir. 2005) (holding there was no error, constitutional or

otherw ise, where defendant received mandatory minimum sentence). Further,

both the plea agreement and the plea colloquy indicate A valos-V asquez’s guilty

plea was entered knowingly and voluntarily. See United States v. Hurlich, 293

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F.3d 1223, 1230 (10th Cir. 2002) (“A defendant’s guilty plea must be knowing,

voluntary, and intelligent.”). Because Avalos-Vasquez entered a valid guilty plea

and received the mandatory minimum sentence, there is no non-frivolous ground

on which Avalos-Vasquez could appeal either his conviction or the sentence

imposed.

      Accordingly, this court grants counsel’s motion to withdraw and dismisses

the appeal.

                                      ENTERED FOR THE COURT



                                      M ichael R. M urphy
                                      Circuit Judge




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