                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  June 15, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                     No. 08-8047
 CODY J. ROBINSON,                            (D.C. No. 1:07-CR-00189-CAB)
                                                    (Dist. of Wyoming)
          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before PORFILIO, ANDERSON, and BALDOCK, Circuit Judges. **


      Defendant Cody J. Robinson pleaded guilty to possession of child

pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B).         The district court

calculated Defendant’s Guidelines range to be 63 to 78 months’ imprisonment.

Although Defendant’s attorney requested a below Guidelines sentence, the district

court, after considering the 18 U.S.C. § 3553(a) factors, determined that a sentence

of 70 months’ imprisonment was appropriate.


      *
         This order and judgment is not binding precedent except under the doctrines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.
      **
         After examining the briefs and appellate record, this panel has determined
unanimously to honor 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.
      On appeal, Defendant’s counsel requested the court’s consent to withdraw and

filed a brief pursuant to Anders v. California, 386 U.S. 738, 744 (1967). The

Government has elected to not file a response. Defendant filed a letter requesting

that his appeal be withdrawn. Our local rules require that a voluntary motion to

dismiss a criminal appeal contain “a statement, signed by the appellant,

demonstrating knowledge of the right to appeal and expressly electing to withdraw

the appeal.” 10th Cir. R. 46.3(B). Defendant’s letter did not clearly demonstrate

such knowledge of his rights. Out of an abundance of caution, we will proceed to

examine whether the record reveals any non-frivolous bases for appeal. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we dismiss

Defendant’s appeal and grant defense counsel’s motion to withdraw.        Under Anders,

defense 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 may then choose to submit arguments to

the court in response. The court must then fully examine the record “to determine

whether defendant’s claims are wholly frivolous.” Id. If so, the court may dismiss

the appeal. Here, Defendant’s counsel has not identified any meritorious potential

bases for appeal. Therefore, we will undertake our own review.

      After independently reviewing the record, we are convinced that Defendant

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knowingly, voluntarily, and intelligently pleaded guilty. We have likewise reviewed

the pre-sentence report (PSR) and sentencing transcript for procedural and

substantive reasonableness. See United States v. Algarate-Valencia, 550 F.3d 1238,

1242 (10th Cir.2008) (“Appellate courts review sentencing decisions first for

procedural reasonableness, and then for substantive reasonableness.”). We note that

Defendant informed the district court that he read the PSR and that it was

substantially correct. We also observe that, after the Government’s attorney recited

the appropriate Guidelines range, the district court observed that a range of 63 to 78

months based on a total offense level of 25 and a criminal history category of II

comported with its own calculations. Defendant did not object to the district court’s

calculation of the Guidelines sentence or its explanation of why a 70-month sentence

was more appropriate. Therefore, we would review any appeal of the procedural

reasonableness of the district court’s sentence for plain error only. See United States

v. Brown, 316 F.3d 1151, 1155 (10th Cir.2003). Under this record, we cannot

deduce any error, much less a plain one.        Consequently, we find Defendant’s

sentence procedurally reasonable.

      Similarly, we hold the district court properly exercised its discretion and

imposed a substantively reasonable sentence. We presume that sentences within the

guidelines range are substantively reasonable and nothing in the record rebuts that

presumption. See United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir.2006). To

the contrary, the district court sentenced Defendant toward the low end of the

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recommended Guidelines sentence.          Defendant’s sentence was substantively

reasonable in light of the factors identified in 18 U.S.C. § 3553(a).

      For the foregoing reasons, we have determined that Defendant’s appeal is

frivolous under Anders. Accordingly, we DISMISS Defendant’s appeal and GRANT

his counsel’s motion to withdraw from this case. See Anders, 386 U.S. at 744

(holding that, if a defendant’s appeal is “wholly frivolous,” an appellate court “may

grant counsel’s request to withdraw and dismiss the appeal”).

                                       Entered for the Court,



                                       Bobby R. Baldock
                                       United States Circuit Judge




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