                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                   September 28, 2006
                                 TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                      Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                    No. 06-1002
          v.                                            D. Colorado
 FELICIAN O M ERINO -SAN CH EZ,                 (D.C. No. 05-CR-252-W M )

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before TACH A, Chief Judge, A ND ER SO N and BROR BY, 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.

      Defendant/appellant Feliciano M erino-Sanchez pled guilty to one count of

unlawful reentry by an alien previously deported following a conviction for an




      *
       This order and judgment is not binding precedent, except under the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.
aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). He was

sentenced to thirty months’ imprisonment. He has timely appealed.

      M erino-Sanchez’s appointed counsel, W arren R. W illiamson, has filed an

Anders brief and moved to withdraw as counsel. See Anders v. California, 386

U.S. 738 (1967). M erino-Sanchez has not filed a response, and the government

has declined to file a brief. W e therefore base our conclusion on counsel’s brief

and our own review of the record. For the reasons set forth below, we agree with

M r. M oore 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

      As stated in his plea agreement, M erino-Sanchez, a citizen of M exico, was

convicted in 1993 of a felony drug trafficking offense, in violation of California

law. He was deported to M exico in February 2001. He reentered the United

States illegally in June 2002. On M ay 13, 2005, he w as arrested in D enver,

Colorado, on charges related to the consumption of alcohol in a public park and

was found to be present illegally in the United States.

      M erino-Sanchez then entered into a written plea agreement, in which he

agreed to plead guilty to the single-count indictment, in exchange for a stipulated

sentence under Fed. R. Crim. P. 11(c)(1)(C). The stipulated sentence w as a

sentence at the lowest end of the United States Sentencing Commission,

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Guidelines M anual (“USSG ”) (2004), sentencing range applicable for a total

offense level of 17. Plea Agreement at 5, R. Vol. I, tab 19. The plea agreement

calculated M erino-Sanchez’s criminal history category as III, which yielded an

estimated sentencing range of thirty to thirty-seven months. The United States

Probation office prepared a presentence report (“PSR”), which also calculated

M erino-Sanchez’s guideline sentencing range at thirty to thirty-seven months.

      The district court subsequently held a sentencing hearing and imposed the

thirty month sentence to which the parties had stipulated. M erino-Sanchez,

proceeding pro se, filed this appeal. W e appointed counsel to represent M erino-

Sanchez.



                                  D ISC USSIO N

      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 that appeal.

                                        -3-
Id. (citing Anders, 386 U.S. at 744).

      W e agree with M erino-Sanchez’s counsel that there are no nonfrivolous

issues related to M erino-Sanchez’s guilty plea or sentence.

      Federal Rule of Criminal Procedure 11(c)(1)(C) states that, in
      structuring a guilty plea, the parties may “agree that a specific
      sentence or sentencing range is the appropriate disposition of the
      case, . . . (such a recommendation or request binds the court once the
      court accepts the plea agreement).” W here a defendant agrees to and
      receives a specific sentence, that defendant may only appeal the
      sentence if it was (1) imposed in violation of law, (2) imposed as a
      result of an incorrect application of the guidelines, or (3) is greater
      than the sentence set forth in the plea agreement.

United States v. Silva, 413 F.3d 1283, 1284 (10th Cir. 2005). Our review of the

record in this case reveals no argument that the sentence was imposed in violation

of law, nor is there any argument that it resulted from an incorrect application of

the guidelines. Furthermore, it is precisely the sentence set forth in the plea

agreement. W e can perceive nothing in this record which would rebut the

presumption of reasonableness accorded the sentence imposed in this case. See

United States v. Terrell, 445 F.3d 1261, 1264-65 (10th Cir. 2006). It is both

reasoned and reasonable.




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                               C ON CLU SIO N

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

this appeal is D ISM ISSED .

                                           ENTERED FOR THE COURT


                                           Stephen H. Anderson
                                           Circuit Judge




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