                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            FEB 4 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 98-1407
                                                     (D.C. No. 98-CR-135)
    ANTONIO OLIVARES,                                      (D. Colo.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, McKAY, and PORFILIO, Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 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      This order and judgment is not binding precedent, except under the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. 36.3.
      Defendant Antonio Olivares pleaded guilty to one count of using a

communication facility in committing a controlled substance offense in violation

of 21 U.S.C. § 843(b). He was sentenced to forty-eight months’ imprisonment

followed by one year of supervised release. His counsel has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), and has requested leave to

withdraw for the reason that the defendant’s appeal is frivolous. In his brief,

counsel asserts that the defendant’s sentence was not imposed in violation of the

law or as a result of an incorrect application of the guidelines.

      Upon the filing of counsel’s Anders brief, the defendant was given three

opportunities to respond. He failed to do so.

      After a thorough review of the record on appeal and counsel’s brief, the

court concludes that there are no meritorious issues for appeal. The district court

decreased the defendant’s offense level by three points under U.S.S.G. §

3E1.1(b) for acceptance of responsibility. The court also decreased the

defendant’s criminal history category classification under U.S.S.G. § 4A1.3, p.s.,

from III to II, finding that category III significantly overrepresented the

seriousness of the defendant’s criminal history. Based on a total offense level of

twenty-three and a criminal history category of II, the guideline range was fifty-

one to sixty-three months. However, because 21 U.S.C. § 843(d)(1) imposes a

statutory maximum sentence of forty-eight months for a violation of § 843(b), the


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district court imposed a forty-eight month sentence. The district court properly

determined defendant’s sentence.

      AFFIRMED. Counsel’s motion to withdraw is GRANTED.


                                                   Entered for the Court



                                                   Monroe G. McKay
                                                   Circuit Judge




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