                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                             May 4, 2006
                                      TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                            Clerk of Court

 UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,                    No. 05-2153
           v.                                            (D. New Mexico)
 LUIS DAVID MACHUCA,                                (D.C. No. CR-04-1048-RB)

                  Defendant - Appellant.


                                ORDER AND JUDGMENT         *




Before TACHA, Chief Circuit Judge,         ANDERSON and BALDOCK , Circuit
Judges.



       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). The case is

therefore ordered submitted without oral argument.

       Luis David Machuca pled guilty to one count of possession with intent to

distribute five grams or more of methamphetamine, in violation of 21 U.S.C.


       This order and judgment is not binding precedent, except under the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.
§ 841(a)(1) and (b)(1)(B). He was sentenced to 84 months’ imprisonment,

followed by four years of supervised release. Mr. Machuca filed a timely Notice

of Appeal, and his counsel, Jose Coronado, filed a brief pursuant to   Anders v.

California , 386 U.S. 738 (1967), moving to withdraw as counsel. For the reasons

set forth below, we agree with Mr. Coronado that the record in this case provides

no nonfrivolous basis for an appeal, and we therefore grant his motion to

withdraw and dismiss this appeal.



                                   BACKGROUND

       Mr. Machuca was arrested on February 7, 2004, after police officers who

had stopped a car in which he was a passenger discovered bags of a white

substance containing 5.3 grams of pure methamphetamine on his person and a

loaded firearm under the passenger seat. Mr. Machuca was then indicted by a

grand jury and pled guilty to the indictment without a plea agreement. The court

accepted Mr. Machuca’s plea after informing him of the constitutional rights he

would thereby waive and establishing the factual basis for the plea. Mr. Machuca

indicated at the plea hearing that he contested his possession of a firearm, and the

court indicated that that was not part of the indicted charge.

       The United States Probation Office then prepared a presentence report

(“PSR”), which calculated an imprisonment range based on the United States


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Sentencing Commission,     Guidelines Manual (“USSG”) (Nov. 2003). Using the

method of converting the actual methamphetamine amount to its marijuana

equivalent, the PSR set a base offense level of 26. The PSR suggested a two-

level enhancement pursuant to USSG §2D1.1(b)(1) for possession of a firearm,

and a two-level reduction pursuant to USSG §3E1.1(a) for acceptance of

responsibility, yielding a total offense level of 26.

      In its calculation of a criminal history score, the PSR assessed four points

under USSG §4A1.1(b) based on two prior sentences of between sixty days and

thirteen months, six points under USSG §4A1.1(c) based on six other prior

sentences, two points under USSG §4A1.1(d) because the instant offense had

occurred while Mr. Machuca was on probation for a prior offense, and one point

under USSG §4A1.1(e) because the instant offense had occurred less than two

years after Mr. Machuca’s release from imprisonment. This yielded a total of

eleven points because a maximum of four points under USSG §4A1.1(c) are

allowed in the calculation. This established a criminal history category of V. The

resulting Guideline imprisonment range was 110 to 137 months.

      Mr. Machuca objected to the §2D1.1(b)(1) enhancement for firearm

possession, submitting a letter from the driver of the vehicle in which the firearm

was found, in which the driver admitted owning the firearm. Mr. Machuca also

objected to the criminal history points assessed under §4A1.1(c), arguing that he


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was uncertain whether he had waived his right to counsel in those six cases, and

he further objected to the criminal history points assessed under §4A1.1(d) and

(e), arguing that these points double counted convictions for which he had already

been assessed points under §4A1.1(b) and (c). The government submitted a

response suggesting the §2D1.1(b)(1) enhancement may be unwarranted, and

indicating an additional one-level reduction in the offense level was warranted for

acceptance of responsibility.

      At the sentencing hearing, the district court indicated it would accept the

government’s concession regarding the §2D1.1(b)(1) enhancement, and its

requested additional one-level reduction, without further argument. Documents

were then submitted indicating that Mr. Machuca had waived his right to counsel

in four of the six cases assessed points under §4A1.1(c). The court determined

that leaving the other two cases off the points calculation would have no effect on

criminal history category, since the maximum number of points assessable under

that subsection, as indicated above, was four. Based on a recalculated offense

level of 23, the Guideline imprisonment range was 84 to 105 months. After

hearing argument on other factors relevant to sentencing, the court sentenced

Mr. Machuca to 84 months, the low end of the Guideline range.




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                                     DISCUSSION

       Under Anders , “counsel [may] request permission to withdraw [from an

appeal] 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) (citing   Anders , 386 U.S. at 744). This process requires counsel

to

       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 [c]ourt 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.

Id. (citing Anders , 386 U.S. at 744).

       In this case, Mr. Machuca’s counsel filed his     Anders brief in September

2005. Although six months have now passed, Mr. Machuca has not filed a

response. We therefore base our conclusions on counsel’s brief and our own

review of the record.

       Mr. Machuca pled guilty without a plea agreement, and he did not file a

motion in district court to withdraw his guilty plea before sentencing. In the

absence of a waiver of the right to appeal in a plea agreement, a plea may be set

aside on direct appeal if the court holds it was not knowing and voluntary.     See

Fed. R. Crim. P. 11(e);    United States v. Asch , 207 F.3d 1238, 1242 (10th Cir.


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2000). Having carefully reviewed the record, we see no basis for such a claim

here.

        As recognized by counsel, the only other possible basis for an appeal must

relate to Mr. Machuca’s sentence. We agree with counsel that there is no

nonfrivolous issue related to the district court’s application of the Guidelines.

Counsel also indicates that, “[w]hile the court did not specifically address

whether there was a basis for disregarding the guidelines and exercis[ing] its

discretion, it is hard to imagine why the court would . . . sentence Mr. Machuca

outside the guideline range,” in light of his “somewhat extensive criminal

history.” Appellant’s Br. at 11. While we encourage district courts to refer

explicitly to the sentencing factors set forth in 18 U.S.C. § 3553(a), “[w]e will

‘not demand that the district court recite any magic words to show us that it

fulfilled its responsibility.’”   United States v. Mares , 441 F.3d 1152, 1161 (10th

Cir. 2006) (quoting United States v. Contreras- Martinez     , 409 F.3d 1236, 1242

(10th Cir. 2005) (further quotation omitted)). We conclude from our review of

the record that there is no indication that the district court failed to consider the

appropriate factors, or that the presumption of reasonableness arising from the

imposition of a sentence within the Guideline range,     see United States v. Kristl ,

437 F.3d 1050, 1054 (10th Cir. 2006) (per curiam), could be overcome based on

the facts of this case.


                                            -6-
      Our review of the record reveals no other claims arguable on their merits,

and we accordingly conclude that Mr. Machuca’s appeal is wholly frivolous.



                                 CONCLUSION

      For the foregoing reasons, counsel’s motion to withdraw is GRANTED and

this appeal is DISMISSED.

                                              ENTERED FOR THE COURT


                                              Stephen H. Anderson
                                              Circuit Judge




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