     Case: 16-50103      Document: 00513716719         Page: 1    Date Filed: 10/13/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                    No. 16-50103                                FILED
                                  Summary Calendar                        October 13, 2016
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE PEQUENO-GARCIA, also known as Jose Tomas Pequeno-Garcia,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 6:15-CR-161-1


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
       The attorney appointed to represent Jose Pequeno-Garcia has moved for
leave to withdraw and has filed a brief in accordance with Anders v. California,
386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011).
Counsel also moves to extend the time for filing an amended brief. Pequeno-
Garcia has filed a response to the Anders brief and moves for the appointment
of substitute counsel.       We have reviewed counsel’s Anders brief and the


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 16-50103    Document: 00513716719     Page: 2   Date Filed: 10/13/2016


                                 No. 16-50103

relevant portions of the record reflected therein, as well as Pequeno-Garcia’s
response. We concur with counsel’s assessment that the appeal presents no
nonfrivolous issue for appellate review.
      In his response, Pequeno-Garcia first argues that his prior deportation
was unlawful due to defects in the removal proceedings and therefore could not
serve as a predicate for his instant illegal reentry offense. Such a challenge
does not present a nonfrivolous issue for appeal because it has been waived by
Pequeno-Garcia’s voluntary and unconditional guilty plea. See United States
v. Daughenbaugh, 549 F.3d 1010, 1012 (5th Cir. 2008). Pequeno-Garcia’s
remaining arguments challenging the calculation of his criminal history score
and the substantive reasonableness of his sentence also do not raise a
nonfrivolous appellate issue. See U.S.S.G. § 4A1.2(e)(1); U.S.S.G. § 1B1.11(a);
United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009).
      Accordingly, counsel’s motion for leave to withdraw is GRANTED,
counsel’s motion to extend the time for filing an amended brief is DENIED AS
UNNECESSARY, counsel is excused from further responsibilities herein, and
the APPEAL IS DISMISSED. See 5TH CIR. R. 42.2. Pequeno-Garcia’s motion
for the appointment of substitute counsel is DENIED. See United States v.
Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998).




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