                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                     January 29, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                     No. 06-2248
          v.                                           (D. New M exico)
 JESUS BALD ERAM A-M END EZ,                      (D.C. No. 06-CR-1188-JC)

               Defendant - Appellant.




                            OR D ER AND JUDGM ENT *


Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. **


      Jesus Balderama-M endez pleaded guilty to unlawful reentry by a deported

alien previously convicted of an aggravated felony. The district court sentenced

him to fifty-seven months’ imprisonment. Counsel for M r. Balderama-M endez

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

moved to withdraw. After considering the Anders brief and examining the record,


      *
         This order and judgment is not binding precedent except under the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.
      **
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is
therefore ordered submitted without oral argument.
we conclude that no non-frivolous grounds for appeal exist. W e therefore grant

counsel’s motion to withdraw and dismiss the appeal.

                                         I.

      The United States Border Patrol apprehended M r. Balderama-M endez

during a traffic stop near Carlsbad, New M exico. W hen questioned by border

patrol agents, M r. Balderama-M endez admitted he was a M exican citizen and

illegally entered the U nited States. A records check subsequently revealed M r.

Balderama-M endez was deported on August 14, 2001 due to a prior felony

conviction for aggravated battery.

      M r. Balderama-M endez pleaded guilty, without a plea agreement, to one

count of unlawful reentry by a deported alien previously convicted for an

aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). The United

States Probation Office prepared a Presentence Report (PSR ). Pursuant to §

2L1.2 of the United States Sentencing Guidelines (U.S.S.G.), M r. Balderama-

M endez’s base offense level was eight. The PSR recommended a sixteen-level

enhancement based on the prior conviction for aggravated battery. See U.S.S.G.

§ 2L1.2(b)(1). A three-level reduction for acceptance of responsibility under

U.S.S.G. § 3E1.1 brought M r. Balderama-M endez’s final offense level to twenty-

one. The PSR assessed a total of nine criminal history points against M r.

Balderama-M endez under U.S.S.G. § 4A1.1: three points for his aggravated

battery conviction under § 4A1.1(a); two points for a misdemeanor battery

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conviction under § 4A1.1(b); and the maximum of four points for five other

misdemeanor convictions under § 4A1.1(c). In addition, M r. Balderama-M endez

received zero points for a burglary conviction, a battery conviction, and four D U I

convictions because they occurred more than ten years before the border patrol

apprehended him. See U.S.S.G. § 4A1.2(e)(3). In accordance with the sentencing

guidelines, nine criminal history points placed M r. Balderama-M endez in criminal

history category IV. U.S.S.G. Ch. 5, Pt. A (Sentencing Table). An adjusted

offense level of twenty-one and a criminal history category of IV yielded a

suggested sentencing range of 57 to 71 months.

      At sentencing, M r. Balderama-M endez did not object to the PSR or request

a downward departure. Rather, he asked for a sentence at the lower-end of the

advisory guidelines range. The district court obliged and sentenced M r.

Balderama-M endez to 57 months’ imprisonment.

      M r. Balderama-M endez subsequently directed his defense counsel to appeal

the district court’s calculation of his offense level and criminal history category

under the sentencing guidelines. Counsel filed a motion to withdraw and an

Anders brief, asserting that there are no non-frivolous issues for appeal.

                                          II.

      Under Anders v. California, counsel may request permission to withdraw

from an appeal if counsel conscientiously examines the case and determines that

there are no non-frivolous issues for appeal. 386 U.S. at 744. Counsel must in

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addition submit to both the court and his client a brief referring to anything in the

record arguably supporting an appeal. The client may then raise any points he

chooses, and the appellate court thereafter undertakes an independent examination

of the proceedings and determines whether the appeal is in fact wholly frivolous.

If it so finds, the appellate court may grant counsel’s request to withdraw and

dismiss the appeal. If, however, the court determines there are meritorious

grounds for appeal in the record, the court must appoint the defendant new

counsel to argue the appeal. Id.

      As indicated above, the Anders brief of M r. Balderama-M endez’s counsel

states that there are no non-frivolous issues for appeal. M r. Balderama-M endez,

despite being advised of his right to file a pro se supplemental brief, has chosen

not to provide any additional materials to the court.

      After a deliberate review of the record, we agree with defense counsel that

there are no non-frivolous appealable issues. To begin, M r. Balderama-M endez

pleaded guilty to illegal reentry and there is no evidence in the record that his

plea was made unknowingly or involuntarily. In addition, there are no errors in

the district court’s calculations of M r. Balderama-M endez’s offense level and

criminal history category. W e also note that M r. Balderama-M endez failed to

object to those calculations below and received the exact sentence he requested at

the sentencing hearing. Finally, we cannot detect any basis in the record for

ignoring the presumption of reasonableness afforded to M r. Balderama-M endez’s

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lower-end guidelines sentence. See United States v. Kristl, 437 F.3d 1050, 1054

(10th Cir. 2006).

                                       III.

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

DISM ISS this appeal.

                                              Entered for the Court,


                                              Robert H. Henry
                                              Circuit Judge




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