                                                                       F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                    January 24, 2007
                                 TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                      Clerk of Court


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

               Plaintiff - Appellee,                   No. 05-1392
          v.                                           (D. Colorado)
 ALBERTO ROJAS, a/k/a Eliezer                   (D.C. No. 04-CR-86-EW N)
 Fernandez-Serrato,

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before TA CH A, Chief Circuit Judge, HA RTZ, and TYM KOVICH, Circuit
Judges.


      Alberto Rojas was indicted in the United States District Court for the

District of Colorado on seven counts. The first count charged him with

conspiracy to possess with intent to distribute a quantity of 200 grams or more of

a mixture or substance containing methamphetamine, and 100 grams or more of a

mixture or substance containing heroin, see 21 U.S.C. § 812 and id. § 841(a)(1),


      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor the party’s request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
(b)(1)(A) and (b)(1)(B). Counts Two, Three, Four and Five each charged that he

possessed heroin with intent to distribute it, see id. § 841(a)(1) and (b)(1)(C).

Count Six charged that he possessed with intent to distribute a quantity of 100

grams or more of a mixture or substance containing a detectable amount of

heroin. Count Seven charged that he possessed with intent to distribute 200

grams or more of a mixture containing 50 grams or more of methamphetamine

(actual), and 100 grams or more of a mixture or substance containing heroin, see

id. § 841(a)(1), b(1)(A) and b(1)(B).

      The district court acquitted M r. Rojas on Count One. The jury found him

guilty on Counts Two through Six. As for Count Seven, the jury acquitted him of

the methamphetamine charge but convicted on the heroin charge. He was

sentenced to 188 months’ imprisonment. He appeals that sentence. M r. Rojas’s

appellate counsel, Jeffrey Edelman, filed an Anders brief, see Anders v.

California, 386 U.S. 738 (1967) (court may grant counsel’s motion to withdraw

after counsel files a brief exploring possible avenues of appeal and demonstrating

that all lack merit), and M r. Rojas responded by filing a pro se brief. The

government has declined to file a brief. W e agree with M r. Edelman that the

record presents no nonfrivolous basis for an appeal, and we therefore grant his

motion to withdraw and dismiss this appeal.

I.    D ISC USSIO N




                                         -2-
      M r. Rojas raises two contentions in his response to his attorney’s

memorandum: (1) the methamphetamine that the district court attributed to him

was not actually his; and (2) the 142 grams of methamphetamine attributed to him

was not pure. W e reject these contentions.

      Regarding the first contention, the district court found that the evidence

presented by government witness Samuel Yarbro connected M r. Rojas to the 142

methamphetamine found in his house, even though the jury had acquitted him of

the methamphetamine charge. That finding was permissible. See United States v.

Watts, 519 U.S. 148, 157 (1997) (“[A] jury’s verdict of acquittal does not prevent

the sentencing court from considering conduct underlying the acquitted charge, so

long as that conduct has been proved by a preponderance of the evidence.”);

United States v. M agallanez, 408 F.3d 672, 684-85 (10th Cir. 2005) (same).

      M r. Rojas’s second contention is also meritless. The district court did not

find that the 142 grams of methamphetamine discussed at sentencing was pure.

The defendant had possessed in his house 221.9 grams of methamphetamine

which, according to the testimony of a DEA chemist, was 64% pure. The amount

of methamphetamine (actual) was therefore 64% of 221.9 grams, or 142 grams.

      The only other argument that we need address is contained in

M r. Edelman’s brief to the court. It suggests that the district court may have

applied the Guidelines in a mandatory, rather than an advisory, manner, in

contravention of United States v. Booker, 543 U.S. 220 (2005). But the court

                                         -3-
noted at sentencing that the Guidelines are advisory. W e therefore reject this

argument.

       Because the record and briefs reveal no nonfrivolous issue, M r. Rojas is not

entitled to relief.

       W e DISM ISS this appeal and GRANT the motion of M r. Edelman to

withdraw as appellate counsel.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




                                         -4-
