                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            APR 26 2001
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,
               Plaintiff - Appellee,                    No. 00-1387
          v.                                      (D.C. No. 00-CR-38-D)
 GUSTAVO AVILA-RIVAS, also                               (D. Colo.)
 known as Hector Rivas-Trujillo, also
 known as Hecotor Avila-Rivas,
               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before SEYMOUR, McKAY, and BRORBY, Circuit Judges.



      After examining the briefs and the 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.

      Defendant pled guilty to one count of unlawful reentry of an alien after

deportation in violation of 8 U.S.C. § 1326(a). The district court sentenced him



      *
       This order and judgment is not binding precedent, except under the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.
to forty-one months in prison followed by a three-year term of supervised release.

Defendant’s counsel filed a timely notice of appeal and has subsequently filed a

brief pursuant to Tenth Circuit Rule 46.4(B)(1) and Anders v. California, 386

U.S. 738 (1967), accompanied by a request for leave to withdraw.

      Anders holds that “if counsel finds his case to be wholly frivolous, after a

conscientious examination of it, he should so advise the court and request

permission to withdraw.” Id. at 744. Counsel must also submit a brief “referring

to anything in the record that might arguably support the appeal.” Id. The

appellant must be furnished with a copy of counsel’s brief and must be allowed

time “to raise any points that he chooses; the court . . . then proceeds, after a full

examination of all the proceedings, to decide whether the case is wholly

frivolous.” Id. If the court finds the case frivolous, it may grant counsel’s

request to withdraw and dismiss the appeal. Id.

      The only potentially appealable issue raised in counsel’s Anders brief is

whether Defendant’s sentence was correctly calculated under the Sentencing

Guidelines. We find that issue to be frivolous. Our review of the record and the

relevant sentencing guidelines reveals nothing that would indicate a miscalculated

sentence in the instant case. Counsel’s brief contains a certificate of service

certifying that Defendant was furnished with a copy of the brief by United States

mail on December 5, 2000. Aplt. Br., at 12. We have received no indication that


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Defendant wishes to raise additional issues. We therefore grant counsel leave to

withdraw and DISMISS the appeal.

                                              Entered for the Court



                                              Monroe G. McKay
                                              Circuit Judge




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