                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                       March 30, 2007
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court

 UNITED STATES OF AM ERICA,
              Plaintiff-Appellee,                        No. 06-4040
 v.                                               (D.C. No. 2:05-CR -530-TS)
 ARTHUR ARCHULETA, a/k/a Arthur                            (D. Utah)
 Archuletta, a/k/a Art Archutetta,
              Defendant-Appellant.



                           OR D ER AND JUDGM ENT *


Before BR ISC OE, M cKA Y, and M cCO NNELL, Circuit Judges.


      After examining the briefs and the appellate record, this 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)(2); 10th Cir. R.

34.1(G ). The case is therefore ordered submitted without oral argument.

      Defendant pleaded guilty to being a felon in possession of a firearm in

violation of 18 U .S.C. § 922(g)(1), and was sentenced to thirty-three months’

imprisonment based on a four-level increase under United States Sentencing




      *
        This order and judgment is not binding precedent, except under the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.
Guideline § 2K2.1(b)(5). 1 This case comes to us on defense counsel’s motion to

withdraw as counsel. In compliance with Anders v. California, 386 U.S. 738

(1967), he has filed a brief in support of that motion. That brief states that the

district court’s application of § 2K2.1(b)(5) poses the only arguable issue for

appeal.

      Defendant was charged in Utah state court with aggravated assault with a

dangerous weapon 2 following a domestic dispute in which evidence indicates that

Defendant pointed a loaded, 9-mm weapon at his girlfriend and her seven-year-

old son. The charge was dropped, however, following apparent mismanagement

of the prosecution. The district court nevertheless relied upon this information,

contained in the pre-sentence report (“PSR”) filed in conjunction with

Defendant’s federal § 922(g)(1) crime, in deciding to apply the sentencing

enhancement. At sentencing, defense counsel objected to the inclusion of and


      1
        Section 2K2.1(b)(5) was renumbered as § 2K2.1(b)(6) in the 2006 edition
of the Sentencing Guidelines. For the sake of consistency, we will use the
numbering that existed at the time of sentencing. The section directs that “[i]f the
defendant used or possessed any firearm . . . in connection with another felony
offense, . . . increase [the offense level] by 4 levels.”
      2
         Under Utah Code Ann. § 76-5-102(1), assault is defined as “(a) an
attempt, with unlawful force or violence, to do bodily injury to another; (b) a
threat, accompanied by a show of immediate force or violence, to do bodily injury
to another; or (c) an act, committed with unlawful force or violence, that causes
bodily injury to another or creates a substantial risk of bodily injury to another.”
Aggravated assault, defined as assault using a dangerous weapon or other means
or force likely to produce death or serious bodily injury, Utah Code Ann. § 76-5-
103, is a third degree felony punishable by up to five years’ imprisonment, Utah
Code Ann. § 76-3-203.

                                         -2-
reliance upon this information in the PSR because the state charge was never

prosecuted and no facts relating to this charge were admitted by Defendant in his

guilty plea. The district court denied the objection:

      Based upon defendant’s own post-M iranda admission, combined
      with the evidence presented by the government in this case,
      including photographs, a 911 audiotape and videotape of interviews,
      the Court finds by a preponderance of the evidence that the
      defendant directly used one of four weapons in his possession to
      engage in behavior amounting to aggravated assault . . . .

(Sentencing Tr. at 12.)

      In his Anders brief, defense counsel asserts that the district court’s reliance

on facts alleged in the PSR relating to the aggravated assault charge raises no

nonfrivolous appealable issue. 3 In support of that position, he cites United States

v. Wolfe, 435 F.3d 1289 (10th Cir. 2006), which reaffirmed, post-Booker, our pre-

Booker decision that unobjected-to facts contained in a PSR constitute admissions

of fact. Wolfe does not apply, however, to the instant situation because defense

counsel objected at sentencing to the use of this evidence, pointing out that the

state charge was never prosecuted and that Defendant denied the incident ever

occurred.

      Nevertheless, in United States v. M agallanez, 408 F.3d 672, 684-85 (10th

Cir. 2005), we held that even after Booker, facts relevant to sentencing need only



      3
        Counsel’s brief contains a certificate of service certifying that he
furnished Defendant with a copy of counsel’s brief. Defendant has not filed a
brief indicating disagreement with his counsel’s position.

                                         -3-
be proved by a preponderance of the evidence, so long as the Sentencing

Guidelines are treated in an advisory fashion. The district court correctly treated

the Sentencing Guidelines as advisory, and the court’s statement correctly and

concisely conveys the evidence upon which it relied in finding that a

preponderance of the evidence warranted the § 2K2.1(b)(5) enhancement.

      Accordingly, after reviewing the Anders brief and the record on appeal,

including the PSR and sentencing transcript, we GRANT counsel leave to

withdraw and A FFIR M the judgment and sentence.

                                               Entered for the Court



                                               M onroe G. M cKay
                                               Circuit Judge




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