                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                       April 17, 2008
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 07-2226
          v.                                           (D. New Mexico)
 PEDRO ARMENDARIZ-CASTILLO,                      (D.C. No. 07-CR-00490-BB)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, PORFILIO, and ANDERSON, 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 ordered submitted without oral argument.

      Defendant and appellant Pedro Armendariz-Castillo pled guilty to illegal

reentry by a previously deported alien, in violation of 8 U.S.C. § 1326(a)(1), (2)

and (b)(2). During the plea colloquy, the court specifically told Armendariz-


      *
        This order and judgment is not binding precedent except under the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.
Castillo that he could receive a sentence up to twenty years. Armendariz-Castillo

indicated that he had discussed his case with his attorney, that he understood the

charges against him and the potential penalties, and that his plea of guilty was

voluntary.

      In preparation for sentencing, the United States Probation Office prepared a

presentence report (“PSR”). The PSR revealed that Armendariz-Castillo had

previously been deported following a conviction for transporting illegal aliens.

With a total adjusted offense level of 21 and a criminal history category III, the

advisory sentencing range under the United States Sentencing Commission,

Guidelines Manual (“USSG”), was forty-six to fifty-seven months.

      The probation office determined, however, that Armendariz-Castillo’s

criminal history category was overstated, and that his criminal history “is most

similar to a defendant in criminal history category II.” PSR ¶ 44, R. Vol. 2. That

criminal history category yielded an advisory Guidelines range of forty-one to

fifty-one months. The district court sentenced Armendariz-Castillo to forty-one

months’ imprisonment. He seeks to appeal that sentence.

      Armendariz-Castillo’s appointed counsel, James Baiamonte, has filed an

Anders brief and has moved to withdraw as counsel. See Anders v. California,

386 U.S. 738 (1967). Armendariz-Castillo has not filed a response, and the

government has declined to file a brief. We therefore base our conclusion on

counsel’s brief and our own careful review of the record. For the reasons set

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forth below, we agree with Mr. Baiamonte that the record in this case provides no

nonfrivolous basis for an appeal, and we therefore grant his motion to withdraw

and dismiss this appeal.

      “When reviewing a sentencing challenge, we evaluate sentences imposed

by the district court for reasonableness.” United States v. Thompson, 518 F.3d

832, 866 (10th Cir. 2008) (further quotation omitted). This reasonableness

inquiry “includes both procedural and substantive components, and we ‘review

the sentence under an abuse-of-discretion standard.’” Id. (quoting Gall v. United

States, 128 S. Ct. 586, 594 (2007)). “Procedural reasonableness involves using

the proper method to calculate the sentence. Substantive reasonableness involves

whether the length of the sentence is reasonable given all the circumstances of the

case in light of the factors set forth in 18 U.S.C. § 3553(a).” Id. at 866-67

(further quotation omitted).

      Under Anders, “counsel [may] request permission to withdraw [from an

appeal] where counsel conscientiously examines a case and determines that any

appeal would be wholly frivolous.” United States v. Calderon, 428 F.3d 928, 930

(10th Cir. 2005) (citing Anders, 386 U.S. at 744). This process requires counsel

to:

      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 [c]ourt must then
      conduct a full examination of the record to determine whether
      defendant’s claims are wholly frivolous. If the court concludes after

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      such an examination that the appeal is frivolous, it may grant
      counsel’s motion to withdraw and may dismiss the appeal.

Id. (citing Anders, 386 U.S. at 744). As indicated, Armendariz-Castillo’s counsel

has filed his Anders brief in this appeal, to which neither Armendariz-Castillo nor

the government has responded.

      We agree with counsel that there is no nonfrivolous issue related to

Armendariz-Castillo’s sentence which could form the basis for an appeal. We

have carefully reviewed the record, and can discern no procedural or substantive

unreasonableness with the sentence or the way it was calculated and imposed.

      For the foregoing reasons, we GRANT counsel’s motion to withdraw and

DISMISS this appeal.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




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