                                                                         F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                     December 8, 2006
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


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

               Plaintiff - Appellee,                     No. 06-1217
          v.                                             (D. Colorado)
 M ELQ U IA D ES O CA N A -R ASCON               (D.C. No. 05-CR-481-REB)
 aka M elquides Ocana-Rascon,

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before T AC HA , Chief Circuit Judge, A ND ER SO N, Circuit Judge, and
BRO RBY, Senior Circuit Judge.




      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-appellant M elquiades Ocana-Rascon pled guilty to one count of

illegal reentry by a deported alien previously convicted of an aggravated felony,



      *
       This order and judgment is not binding precedent except under the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).
in violation of 8 U.S.C. § 1326(a) and (b)(2). He was sentenced to forty-six

months’ imprisonment, followed by three years of supervised release. He has

filed a timely appeal.

      Ocana-Rascon’s appointed counsel, Assistant Federal Public Defender

Robert Pepin, has filed an Anders brief and moved to withdraw as counsel. See

Anders v. California, 386 U.S. 738 (1967). Ocana-Rascon has filed a very short

response, and the government has declined to file a brief. W e therefore base our

conclusion on counsel’s brief, O cana-Rascon’s short response, and our own

careful review of the record. For the reasons set forth below, we agree with

M r. Pepin 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.



                                 BACKGROUND

      As indicated, Ocana-Rascon was indicted on one count of unlawful reentry

by a previously-deported felon. On February 24, 2006, he entered into a written

plea agreement whereby he pled guilty, in exchange for the government’s

agreement to recommend a three-level reduction in his offense level for

acceptance of responsibility and to recommend a sentence at the bottom of the

advisory sentencing range calculated pursuant to the United States Sentencing

Commission, Guidelines M anual (“USSG”) (2005).




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      As a factual basis for his plea, Ocana-Rascon admitted that he was a citizen

of M exico and that he had been previously deported (in 1995) following a

conviction for second degree assault. He further admitted that after he was

deported, he illegally reentered the United States in 2000. At his change of plea

hearing, the district court carefully ascertained that Ocana-Rascon was knowingly

and voluntarily entering into the plea agreement and engaged in a full colloquy

under Fed. R. Crim. P. 11.

      Following his guilty plea, the United States Probation Officer prepared a

presentence report (“PSI”). Pursuant to USSG §2L1.2, the PSI calculated Ocana-

Rascon’s base offense level at eight. With a sixteen-level increase based on his

prior conviction for second degree assault, USSG §2L1.2(b)(1)(A)(ii), and a

three-level reduction for acceptance of responsibility, Ocana-Rascon’s total

offense level was twenty-one. W ith a criminal history category of III, based upon

the prior assault conviction as well as three driving-while-impaired convictions,

Ocana-Rascon’s advisory Guideline sentencing range was forty-six to fifty-seven

months.

      Ocana-Rascon filed a written response to the PSI, in which he did not

challenge the accuracy of the advisory Guideline calculations, but he did raise

tw o factors he argued warranted a sentence below the advisory Guideline range.

First, he argued that although he had pled guilty to second degree assault in 1994,

he was not in fact guilty of that crime. He asserted that he had only pled guilty

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because he had been in jail for six months and had been told by his attorney that

he would receive a sentence of probation if he pled guilty. As it turned out, he

was sentenced to two years. Ocana-Rascon argued that those circumstances

warranted a low er sentence. Additionally, he argued that his youngest daughter,

who has a speech and language disability, was profoundly affected by his

incarceration and a long incarceration would have a severely negative impact on

her. On the basis of those two factors, O cana-Rascon requested a thirty-month

sentence.

      A t O cana-R ascon’s sentencing hearing, his counsel reiterated those two

arguments in favor of a thirty-month sentence. The district court issued findings

and conclusions as follows: regarding Ocana-Rascon’s argument that he was

wrongly convicted of second degree assault, the court stated it was “troubled,”

Tr. of Hr’g on Sentencing at 16, R. Vol. III, because for the situation to have

occurred as described by Ocana-Rascon, Ocana-Rascon’s attorney, as well as the

prosecutor and the state court judge, would have all had to have failed to fulfill

their constitutional duty to correctly inform Ocana-Rascon of the permissible

sentence for assault. The court further noted that Ocana-Rascon had three

driving-while-impaired convictions and had only received ninety days in jail for

each conviction. Finally, while Ocana-Rascon’s daughter’s situation “tug[ged] at

[the court’s] heart strings,” the court ultimately determined that Ocana-Rascon’s

criminal record outweighed those concerns. Id. at 18. After considering the

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advisory Guideline range in light of the statutory sentencing factors contained in

18 U.S.C. § 3553(a), the court determined that a sentence at the bottom of the

Guideline range was actually “very lenient.” Tr. of Hr’g on Sentencing at 19, R.

Vol. III. The court accordingly sentenced Ocana-Rascon to forty-six months,

followed by three years of supervised release. This appeal followed.



                                  D ISC USSIO N

      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 issue 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
      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, Ocana-Rascon’s counsel has

filed his Anders brief, to w hich O cana-Rascon has submitted a very short

response. The government has declined to file a brief.

      W e agree with counsel that there is no nonfrivolous issue related to the

district court’s sentence or to Ocana-Rascon’s guilty plea. Ocana-Rascon himself

                                         -5-
concedes he can articulate no specific challenge to his conviction or sentence. 1

Our careful review of the record convinces us that Ocana-Rascon knowingly and

voluntarily pled guilty and that the district court considered all appropriate

sentencing factors in reaching the sentence it did. W e discern no basis for

ignoring the presumption of reasonableness arising from the sentence imposed

within the advisory Guideline range. See United States v. Kristl, 437 F.3d 1050,

1054 (10th Cir. 2006) (per curiam).




      1
       He asserts that “the Supreme Court is currently reviewing Almendarez-
Torres” v. United States, 523 U.S. 224 (1998), in w hich the Supreme Court
concluded that the fact of a prior conviction need not be charged in an indictment.
Appellant’s Response. Further, although the Court in Apprendi v. New Jersey,
530 U.S. 466 (2000), held that any fact which increases a sentence beyond the
statutory maximum must be charged in an indictment and proven beyond a
reasonable doubt, it made an exception for the fact of a prior conviction. United
States v. Booker, 543 U.S. 220, 244 (2005), reaffirmed that exception for prior
convictions. W hile the Court has itself questioned the continuing validity of
Almendarez-Torres, see Shepard v. United States, 544 U.S. 13, 27 (2005)
(Thomas, J., concurring in the judgment) (noting that “Almendarez-Torres . . . has
been eroded . . . and a majority of the Court now recognizes that Almendarez-
Torres, was incorrectly decided”); Apprendi, (noting “it is arguable that
Almendarez-Torres w as incorrectly decided”), it has not overruled it. Thus, until
the Supreme Court does so, this court is “bound by existing precedent to hold that
the Almendarez-Torres exception fo the rule announced in Apprendi and extended
to the Guidelines in Booker remains good law.” United States v. M oore, 401 F.3d
1220, 1224 (10th Cir. 2005).

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                               C ON CLU SIO N

      For the foregoing reasons, counsel’s motion to withdraw is GRANTED and

this appeal is D ISM ISSED .

                                           ENTERED FOR THE COURT


                                           Stephen H. Anderson
                                           Circuit Judge




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