                                                                         F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         AUG 25 2004
                                 TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 04-1039
          v.                                     (D.C. No. 03-CR-139-RB)
 DEAN EDWARD LETSCHKA, aka                             (D. Colorado)
 Sam Hammer,

               Defendant - Appellant.


                            ORDER AND JUDGMENT          *




Before TACHA , Chief Judge , BRISCOE and HARTZ , Circuit Judges.


      Defendant Dean Edward Letschka pleaded guilty to receiving child

pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A). He stipulated in the

plea agreement to a sentence of 96 months. At the sentencing hearing, however,

Defendant suggested that the court sentence him to a shorter period of

incarceration. He informed the court that it was “not bound” by the “federal

sentencing guideline numbers [that had] been crunched and stretched into a very



      *
       This order and judgment is not binding precedent, except under the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.
long period of incarceration suggested by the prosecution,” and asked the court to

impose a “lighter sentence.” R. Vol. III at 12. Notwithstanding Defendant’s

request, the district court sentenced him to 96 months’ imprisonment, in

accordance with the stipulation. In imposing the sentence, the court noted that

“[t]here [was] no formal request, and certainly no cogent rationale, to depart from

the guideline range or to deviate from the sentence bargained for by both the

government and the defendant in the plea agreement.” Id. at 19-20.

          Defendant now appeals his sentence. Exercising jurisdiction under 28

U.S.C. § 1291, we affirm.

          Defense counsel has filed an Anders brief indicating her belief that there

are no non-frivolous issues to be raised on appeal. See Anders v. California, 386

U.S. 738, 744 (1967). Although Anders entitles Defendant to raise additional

points in response to counsel’s Anders brief, see id., Defendant has made no such

filing.

          We agree with counsel that Defendant has no non-frivolous claims to

pursue on appeal. Defendant simply received the sentence for which he

bargained. There is no indication in the record that he did not knowingly and

voluntarily enter into the plea agreement. And to the extent Defendant’s remarks

at the sentencing hearing may be construed as a request for a downward

departure, we lack jurisdiction to review the district court’s discretionary denial


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of a downward departure unless the denial was based on an illegal factor or an

incorrect application of the Guidelines. United States v. Guidry, 199 F.3d 1150,

1161 (10th Cir. 1999). We see no basis for such an argument in this case.

      Accordingly, agreeing with counsel that Defendant’s claims are frivolous,

we GRANT counsel’s request to withdraw and AFFIRM the judgment below.

                                      ENTERED FOR THE COURT


                                      Harris L Hartz
                                      Circuit Judge




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