                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 20 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 02-2141
                                                   (D.C. No. CR-01-1092-JC)
    MAFFIOLI JAEN DAVILMAR-                            (D. New Mexico)
    JEHOVANY, also known as
    Antonio Souza,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY,
Senior Circuit Judge.



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

unanimously that oral argument would not materially assist 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.




*
      This order and judgment is not binding precedent, except under the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.
      Appellant Mr. Davilmar-Jehovany pled guilty to re-entry of an illegal

alien after being deported for a prior aggravated felony conviction, in violation

of 8 U.S.C. § 1326(b)(2). The presentence report determined that

Mr. Davilmar-Jehovany’s guideline offense level was 23, with a criminal history

of III, yielding a guideline range of fifty-seven to seventy-one months. The

district court adjusted the offense level to 21 after finding no obstruction of

justice. The adjusted guideline range was forty-six to fifty-seven months.

Mr. Davilmar-Jehovany was sentenced to a term of imprisonment of fifty months,

which is within the guideline range.

      Mr. Davilmar-Jehovany appeals his sentence. A jurisdictional issue was

raised by this court regarding the timeliness of Mr. Davilmar-Jehovany’s notice of

appeal. The appeal was partially remanded to the district court to rule on an

extension of time by the defendant to file the notice of appeal. See Fallen v.

United States, 378 U.S. 139, 142-144 (1964); United States v. Lucas, 597 F.2d

243 (10th Cir. 1979). On remand, the district court granted the extension of time.

We have jurisdiction to hear this appeal.

      Mr. Davilmar-Jehovany’s appellate counsel has filed a brief pursuant to

Anders v. California, 1 386 U.S. 738 (1967). In his Anders brief, counsel


1
      Anders holds that if counsel finds a case to be wholly frivolous after
conscientious examination, he may so advise the court and request permission to
                                                                      (continued...)

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concludes the district court correctly applied the guideline range and sentenced

his client. Mr. Davilmar-Jehovany submitted a response to the Anders brief, and

argues (1) the district court used the wrong edition of the sentencing guidelines;

(2) the district court believed it lacked discretion to downward depart; and

(3) clerical error in the judgment. We review the district court’s interpretation

and application of the sentencing guidelines de novo, and the court’s underlying

findings of fact for clear error. United States v. Pappert, 112 F.3d. 1073, 1078

(10th Cir. 1997).

      Mr. Davilmar-Jehovany contends he was not sentenced under the guidelines

in effect at the time of his sentencing, as is customary. He was sentenced on

April 29, 2002. The presentence report clearly states the November 1, 2001

edition of the United States Sentencing Commissions Guideline Manual was used

in computing Mr. Davilmar-Jehovany’s sentence. Under USSG

§ 2L1.2(b)(1)(A)(ii) in the November 1, 2001 edition, if the defendant was

previously deported after a conviction for a felony that is a crime of violence, the

base level is increased by 16 levels. Application Note 1.(B)(ii) states a crime of


1
 (...continued)
withdraw. Counsel must also submit to the court a brief referring to anything in
the record arguably supportive of the appeal. The brief is then served upon the
client, who may then raise any point he chooses, and this court thereafter
undertakes a complete examination of all proceedings and decides whether the
appeal is in fact frivolous. If it so finds, it may grant counsel’s request to
withdraw and dismiss the appeal.      Anders , 386 U.S. at 744.

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violence includes both an offense “that has as an element of the use, attempted

use, or threatened use of physical force against the person of another;” and

“forcible sex offenses (including sexual abuse of a minor).” Appellant’s felony

conviction was for Sexual Assault of a Child. Accordingly, his base level was

correctly increased by sixteen levels.

      Mr. Davilmar-Jehovany’s second argument is that the district court did not

believe it had the discretion to downward depart. “[U]nless the judge’s language

unambiguously states the judge does not believe he has authority to downward

depart, we will not review his decision.” United States v. Rodriguez, 30 F.3d

1318, 1319 (10th Cir. 1994). At sentencing, appellant did not articulate a basis

for a downward departure, accordingly, the district court could not ignore the

guidelines. R. Vol. 3 at 5-6.

      Lastly, Mr. Davilmar-Jehovany claims the district court imposed an

unsupervised release term of two years, yet in the judgment the unsupervised

release term is indicated as two to three years. The judgment unambiguously

states an unsupervised release term of two years.

      After review of the entire proceedings, we conclude that the record

establishes no non-frivolous ground for appeal. The appeal is therefore




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DISMISSED and counsel’s motion to withdraw is GRANTED.

Mr. Davilmar-Jehovany’s pro se Motion to Appoint Attorney is denied.


                                                Entered for the Court



                                                John C. Porfilio
                                                Circuit Judge




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