                                                                            FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                       June 27, 2008
                    UNITED STATES COURT OF APPEALS
                                                                  Elisabeth A. Shumaker
                                 TENTH CIRCUIT                        Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 07-1365
          v.                                         District of Colorado
 JOVITA PEDRAZA-AYALA,                         (D.C. No. 06-CR-00442-MSK)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before TACHA, KELLY and McCONNELL, Circuit Judges.


      Jovita Pedraza-Ayala pled guilty in federal court to illegal reentry of a

previously deported alien and received a 30-month sentence. She has appealed to

this Court. Her counsel, Robert Pepin, moved to withdraw as counsel and filed an

Anders brief, explaining that after a diligent search he could find no non-frivolous

grounds of appeal. Neither Ms. Pedraza-Ayala nor the government has submitted



      *
        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). This case is
therefore 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
a brief. Because we, too, find no non-frivolous issues on appeal, we grant

counsel’s motion to withdraw and dismiss the appeal.

                                 BACKGROUND

      Ms. Pedraza-Ayala is a 56-year-old citizen of Mexico who first entered the

United States illegally at 18, and has lived here most of the time since. After

being deported in 1995 for an aggravated felony conviction, she reentered the

country and in October, 2006, was charged with a single count of illegal reentry.

8 U.S.C. § 1326.

      She received the assistance of a federal public defender, and in March,

2007, filed a pro se motion requesting that the district court dismiss her lawyer

and appoint a replacement because she was “in need of an attorney that is

informed about [i]mm[i]gration laws,” and believed there was “a conflict of

[i]nt[e]rest between Mr. Pepin and [her]self.” R. Vol. I, Doc. 15. The district

court held a hearing where Ms. Pedraza-Ayala explained her objections, and it

became clear that there was no conflict of interest in the legal sense—the

defendant simply wanted an immigration specialist. The district judge rejected

the motion, explaining: “Mr. Pepin is a very skilled and knowledgeable attorney.

His speciality is criminal law. I can only let him withdraw if I find good cause.

And your desire to get legal advice with regard to immigration is not good cause

for him to withdraw.” R. Vol. II, at 7–8.




                                        -2-
      In April, 2007, Ms. Pedraza-Ayala then informed the district court that she

wished to plead guilty. She signed a plea agreement with the government under

which she pled guilty to illegal reentry, and the government agreed to recommend

a three-point sentencing reduction for acceptance of responsibility and a sentence

at the bottom of the advisory guidelines range. Ms. Pedraza-Ayala then appeared

before the court and pled guilty, testifying (through an interpreter) that she

understood her plea and its consequences, and that the facts alleged by the

government were true. She corrected one minor error: that her previous felony

conviction was in Santa Cruz, not in Santa Barbara.

      Ms. Pedraza-Ayala appeared for sentencing in July 2007, but was too ill to

proceed. This may have been due to trouble she had receiving medical treatment

for a time while she was in custody, an issue the judge and defense counsel dealt

with at some length below. She went to the hospital and appeared again for

sentencing a week later, explaining that she felt “fine.” R. Vol. V, at 3. The

Presentence Report calculated a total offense level of 13 (a base offense level of

8, an 8-point enhancement because she was deported after an aggravated felony,

and a 3-point reduction for acceptance of responsibility) and a criminal history

category of V (five) (for a series of fraud, theft, and traffic crimes). This

produced a Guidelines range of 30–37 months. Neither party made any material

objections and Ms. Pedraza-Ayala received a 30-month sentence. Ms. Pedraza-

Ayala then appealed and her counsel filed an Anders brief.

                                          -3-
                                      ANALYSIS

      “The Supreme Court’s decision in Anders v. California, 386 U.S. 738

(1967), authorizes counsel to request permission to withdraw where counsel

conscientiously examines a case and determines that any appeal would be wholly

frivolous. Under Anders, counsel must submit a brief to the client and the

appellate court indicating any potential appealable issues based on the record.

The client may then choose to submit arguments to the court. The Court must

then conduct a full examination of the record to determine whether defendant's

claims are wholly frivolous. If the court concludes after such an examination that

the appeal is frivolous, it may grant counsel’s motion to withdraw and may

dismiss the appeal.” United States v. Calderon, 428 F.3d 928, 930 (10th Cir.

2005) (internal citations omitted).

      Ms. Pedraza-Ayala has not filed a brief, so no party argues on appeal that

there are any errors justifying reversal. After our own review, we agree. As to

the issues mentioned in the Anders brief, we agree with Ms. Pedraza-Ayala’s

counsel. The district court did not abuse its discretion in refusing to appoint a

new attorney. See United States v. Gonzalez-Lopez, 548 U.S. 140, 151 (2006);

United States v. Nichols, 841 F.2d 1485, 1504 (10th Cir. 1988). Nor is there any

evidence that Ms. Pedraza-Ayala’s plea was unknowing or involuntary or lacked a

factual basis. See United States v. Graham, 466 F.3d 1234, 1239 (10th Cir.

2006); United States v. Blair, 54 F.3d 639, 643–44 (10th Cir. 1995). Finally, her

                                         -4-
within-guidelines sentence is substantively and procedurally reasonable. United

States v. Angel-Guzman, 506 F.3d 1007, 1010–17 (10th Cir. 2007). We have

uncovered no other issues worth discussing, and certainly no non-frivolous

grounds for appeal.

      Defense counsel’s motion to withdraw is GRANTED and the appeal is

DISMISSED.

                                                  Entered for the Court


                                                  Michael W. McConnell
                                                  Circuit Judge




                                       -5-
