                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    May 6, 2008
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                      No. 07-2199
 HUGO GARCIA-GUTIERREZ,                           (D.C. No. CR-07-1031-JP)
                                                      (D. New Mexico)
          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before BRISCOE, MURPHY, and HARTZ, 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, submitted without oral argument.

      Defendant Hugo Garcia-Gutierrez pled guilty to one count of illegal re-

entry by a deported alien previously convicted of a felony, in violation of 8

U.S.C. § 1326(a) & (b)(1). The district court sentenced him to eight months’


      *
        This order and judgment is not binding precedent, except under the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.
imprisonment, followed by three years of supervised release. On appeal,

Defendant’s counsel has filed an Anders brief, arguing that there are no legally

viable issues for appeal. See Anders v. California, 386 U.S. 738 (1967). Neither

the government nor Defendant has filed a response. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we dismiss the appeal and grant counsel’s

motion to withdraw.

                                          I.

       After Defendant pled guilty, the presentence report (“PSR”) indicated that

Defendant’s base offense level was eight. U.S.S.G. § 2L1.2(a). Defendant

received a four-level enhancement because of a previous felony conviction for

criminal trespass. See id. § 2L1.2(b)(1)(D). He also received a two-level

reduction for acceptance of responsibility, see id. § 3E1.1(a), which resulted in a

total offense level of ten. In addition, because Defendant’s prior conviction had

resulted in a sentence of twenty-three months’ imprisonment, the PSR assessed

him three criminal history points. See id. § 4A1.1(a). This produced a criminal

history category of II, which, when combined with Defendant’s total offense level

of ten, resulted in a Guidelines range of eight to fourteen months’ imprisonment.

See id. ch. 5, pt. A.

       Defendant did not object to the calculations in the PSR. Rather, Defendant

requested a sentence of eight months’ imprisonment—the bottom of the

Guidelines range. At the sentencing hearing, the district court granted

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Defendant’s request and imposed a sentence of eight months’ imprisonment.

      Defendant’s counsel has now filed an Anders brief, arguing that there are

no legally viable issues for appeal. Neither the government nor Defendant has

filed a response.

                                        II.

      Under Anders, a court-appointed defense counsel who has “conscientiously

examine[d] a case” and concluded “that any appeal would be wholly frivolous,”

may

      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 Court 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 the appeal.

United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005) (citing Anders, 386

U.S. at 744).

      We agree with counsel that no potentially meritorious issues exist on

appeal. There is no reason to believe that Defendant’s plea was anything other

than knowing and voluntary. See Brady v. United States, 397 U.S. 742, 755-56,

(1970).

      The record also indicates that Defendant’s sentence was both procedurally

and substantively reasonable. As the Supreme Court recently explained in

Kimbrough v. United States, --- U.S. ---, 128 S. Ct. 558, 564 (2007),

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“‘reasonableness’ is the standard controlling appellate review of the sentences

district courts impose.” First, we review for procedural reasonableness, asking

whether the district court committed a procedural error, “such as failing to

calculate (or improperly calculating) the Guidelines range, treating the Guidelines

as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately explain the

chosen sentence—including an explanation for any deviation from the Guidelines

range.” Gall v. United States, --- U.S. ---, 128 S. Ct. 586, 597 (2007). We then

review for substantive reasonableness “under an abuse-of-discretion standard,”

and, “[w]hen conducting this review, [we] will, of course, take into account the

totality of the circumstances, including the extent of any variance from the

Guidelines range.” Id.; see also United States v. Smart, 518 F.3d 800, 804-10

(10th Cir. 2008).

      Here, the district court correctly calculated the Guidelines range, and the

district court considered the sentencing factors in 18 U.S.C. § 3553(a). Further,

the district court did not abuse its discretion in sentencing Defendant to eight

months’ imprisonment, at the bottom of the Guidelines range. Defendant’s

sentence was procedurally and substantively reasonable.




                                         -4-
    The appeal is DISMISSED, and counsel’s motion to withdraw is

GRANTED.


                                         Entered for the Court


                                         Mary Beck Briscoe
                                         Circuit Judge




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