                                                                               FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                         November 27, 2009
                      UNITED STATES COURT OF APPEALS                   Elisabeth A. Shumaker
                                                                           Clerk of Court
                                   TENTH CIRCUIT




 UNITED STATES OF AMERICA,

             Plaintiff–Appellee,
                                                             No. 09-1199
 v.                                                (D.C. No. 1:08-CR-00499-PAB-1)
                                                               (D. Colo.)
 GERARDO LOPEZ-GARCIA,

             Defendant–Appellant.


                              ORDER AND JUDGMENT*


Before LUCERO, McKAY, and MURPHY, Circuit Judges.


       Gerardo Lopez-Garcia appeals his sentence of forty-six months’ imprisonment and

three years’ supervised release for re-entering the United States following deportation in

violation of 8 U.S.C. § 1326. In a brief filed pursuant to Anders v. California, 386 U.S.

738 (1967), Lopez-Garcia’s counsel states that there are no non-frivolous arguments to

present on appeal and moves for leave to withdraw. Exercising jurisdiction under 18

       * The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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. 32.1.
U.S.C. § 3742(a) and 28 U.S.C. § 1291, we grant counsel’s motion to withdraw and

dismiss the appeal.

                                             I

       While detained in a Colorado state detention center, Lopez-Garcia informed prison

officials that he was not born in the United States. After being advised of his Miranda

rights in Spanish, Lopez-Garcia consented to an interview with an immigration

enforcement agent. Lopez-Garcia admitted that he was a citizen of Mexico, that he had

been deported from the United States after serving a sentence for drug possession, and

that he subsequently illegally re-entered the United States.

       Lopez-Garcia then entered into a plea bargain in which he stipulated to the above-

noted facts and agreed to plead guilty to one count of violating 8 U.S.C. § 1326. In

return, the government agreed to recommend a sentence at the low end of the applicable

United States Sentencing Guidelines range and to propose a three-level reduction in

Lopez-Garcia’s offense level for acceptance of responsibility. The plea agreement

estimated that Lopez-Garcia’s Guidelines range would be fifty-seven to seventy-one

months’ imprisonment. The agreement noted, however, that the court could impose a

sentence up to the statutory maximum of twenty years’ imprisonment and/or a fine of up

to $250,000.

       Lopez-Garcia’s probation officer prepared a Pre-Sentence Investigation Report

(“PSR”) in advance of a sentencing hearing, which recommended a Guidelines range of

forty-six to fifty-seven months’ imprisonment and up to three years’ supervised release.
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At his sentencing hearing, Lopez-Garcia did not dispute any portion of the PSR. In

accordance with the plea bargain, the government recommended forty-six months’

imprisonment, the bottom of the advisory Guidelines range. Lopez-Garcia requested the

same. The court adopted the factual stipulations of the plea agreement and the

recommendation of the parties as to the sentence. After the court entered Lopez-Garcia’s

sentence, he timely filed a Notice of Appeal.

                                             II

       Under Anders, if an attorney examines a case and determines that any appeal

would be “wholly frivolous,” counsel may “so advise the court and request permission to

withdraw.” 386 U.S. at 744. Counsel must submit a brief to both the appellate court and

the client, pointing to anything in the record that could potentially present an appealable

issue. Id. The client may then choose to offer argument to the court. Id. If, upon close

examination of the record, the court determines that the appeal is frivolous, it may grant

counsel’s request to withdraw and dismiss the appeal. Id. In this case, counsel served

Lopez-Garcia with a copy of the appellate brief, and Lopez-Garcia did not file a response.

       The only arguably appealable issue we discern in the record is the reasonableness

of Lopez-Garcia’s sentence. We review a district court’s sentencing determination for

abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). A sentencing court

abuses its discretion if it imposes a sentence that is procedurally or substantively

unreasonable in light of the factors found in 18 U.S.C. § 3553(a). United States v.

Geiner, 498 F.3d 1104, 1107 (10th Cir. 2007). Examples of procedural
                                             -3-
unreasonableness include “failing to calculate (or improperly calculating) the Guidelines

range, treating the Guidelines as mandatory, failing to consider the § 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, 552 U.S. at 51. Where, as here, a defendant does not contemporaneously object to

the sentencing procedure used, we review only for plain error. United States v. Romero,

491 F.3d 1173, 1176-78 (10th Cir. 2007). In the absence of significant procedural error,

we determine the substantive reasonableness by looking to the totality of the

circumstances. Gall, 552 U.S. at 51. “If the district court correctly calculates the

Guidelines range based upon the facts and imposes [a] sentence within that range, the

sentence is entitled to a presumption of reasonableness.” United States v. Sutton, 520

F.3d 1259, 1262 (10th Cir. 2008) (citing Rita v. United States, 551 U.S. 338, 346 (2007)).

       The district court did not commit plain error in arriving at Lopez-Garcia’s

sentence. The court correctly calculated his Guidelines range, stated it viewed the

Guidelines as advisory, considered the § 3553(a) factors, and explained the basis for the

sentence imposed. Moreover, Lopez-Garcia does not contend that the court based its

determination on erroneous facts, and our independent review of the record shows no

clear error.

       Lopez-Garcia also points to no facts that would overcome the presumption that his

sentence is substantively reasonable. In fact, he received a sentence lower than that

estimated by the plea agreement. The court entered a sentence at the bottom of the
                                            -4-
correctly calculated Guidelines range. Any argument that his sentence was unreasonable

is frivolous.

                                          III

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

DISMISS the appeal.


                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero
                                        Circuit Judge




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