                                                                         F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                    December 18, 2006
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TE O F A M ER IC A,

               Plaintiff-Appellee,                       No. 06-2050
          v.                                             (D. of N.M .)
 A N TH O NY OR TEG A ,                           (D.C. No. CR-03-1566-JH)

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


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


      Anthony Ortega pleaded guilty to one count of felon in possession of a

firearm. He was sentenced to 188 months in prison. His counsel has concluded

no meritorious claims exist on appeal and has filed a motion to withdraw as w ell

as a brief pursuant to Anders v. California, 386 U.S. 738 (1967). Ortega has filed

a pro se motion for appointment of different counsel. Having reviewed the




      *
         This order and judgment is not binding precedent except under the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 (eff. Dec.
1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
record, we GRANT counsel’s request to withdraw, DENY Ortega’s motion for

new counsel, and DISM ISS the appeal.

      As Ortega pleaded guilty and his plea was valid under Fed. R. Crim. P.

11(b), the only issues for appeal relate to sentencing. Nothing in the record

indicates Ortega was not aware of the consequences of his plea or that his plea

was involuntary. The appropriate colloquies occurred and Ortega stated on the

record that he understood the consequences of the plea.

      W ith regards to sentencing, the Anders brief filed by Ortega’s counsel sets

forth two potential issues: 1) whether Ortega’s prior felonies qualified him for

sentencing as an armed career offender, and 2) whether sentencing Ortega to eight

months above the statutory minimum was unreasonable under United States v.

Booker, 543 U.S. 220 (2005). N either of these issues is meritorious.

      Ortega filed a brief objecting to two aggravated DUI felonies being

included as violent felonies for the purposes of determining if he was an armed

career offender. But neither of these charges w ere needed to establish O rtega’s

armed career offender status. According to the Presentence Report, Ortega had

previously been convicted of aggravated assault in 1989, battery on a peace

officer in 1990, and aggravated battery in 2002. The 1989 charge occurred while

Ortega was a juvenile, but under the Arm ed Career Crim inal provision of the

Sentencing Guidelines, USSG § 4B1.4, a convicted felon is subject to an

enhanced sentence pursuant to 18 U.S.C. § 924(e). That statute provides that

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“juvenile delinquency involving the use or carrying of a firearm, knife, or

destructive device that would be punishable by imprisonment for such a term if

comm itted by an adult” qualifies as a violent felony subject to the Armed Career

Criminal enhancement. 18 U.S.C. § 924(e)(2)(B). Such was the case in O rtega’s

1989 aggravated assault conviction. W hether Ortega’s D UI convictions are

“violent felonies” is irrelevant for sentencing purposes in this case, so Ortega’s

appeal on this issue fails.

      As for the Booker challenge, the Anders brief notes that Ortega might

challenge his sentence as unreasonable if the district court did not adequately

consider the statutory factors set forth in 18 U.S.C. § 3553(a) in arriving at the

ultimate sentence. But the sentencing judge clearly stated the § 3553(a) factors

had been considered in arriving at the final sentence. As the sentence is w ell

within the appropriate Sentencing Guidelines range, we presume it is reasonable

unless shown otherw ise. United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir.

2006). Nothing in the record gives us reason to rebut this presumption based on

the § 3553(a) factors.

      W ith no meritorious claims to raise on appeal, we GRANT counsel’s




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request to withdraw, DENY Ortega’s motion for new counsel, and DISM ISS the

appeal.

                                                Entered for the Court


                                                Timothy M . Tymkovich
                                                Circuit Judge




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