                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                      January 25, 2007
                      UNITED STATES CO URT O F APPEALS
                                                                    Elisabeth A. Shumaker
                                   TENTH CIRCUIT                        Clerk of Court



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

          Plaintiff-Appellee,
 v.                                                      No. 06-2270
                                                  (D.C. No. CR-06-1058 JC)
 JOSE G UADALU PE M ORA LES-                              (D .N.M .)
 RA M IREZ,

          Defendant-Appellant.



                                OR DER AND JUDGM ENT *


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


      Jose Guadalupe M orales-Ramirez appeals his sentence and conviction for

illegal reentry after deportation in violation of 8 U.S.C. §§ 1326(a)(1), (a)(2), &

(b)(2). His counsel moves for leave to withdraw in a brief filed pursuant to

Anders v. California, 386 U.S. 738 (1967). W e AFFIRM M orales-Ramirez’s

sentence, DISM ISS the appeal, and GRANT counsel’s motion to withdraw.




      *
        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judgment is not binding precedent except under the doctrines of law of the case,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. 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).
         On December 9, 2005, U.S. Border Patrol agents stopped M orales-Ramirez,

along w ith seven other individuals, near Columbus, New M exico. M orales-

Ramirez admitted that he was a citizen of M exico without authorization to be in

the United States, and that he had previously been deported. A background check

revealed that in 2004 he was convicted of Attempted Common Law Robbery, a

felony, in Charlotte, North Carolina. On M ay 17, 2006, M orales-Ramirez pled

guilty to the sole charge against him, illegal reentry, and was sentenced to 46

months’ imprisonment – at the bottom of his Guidelines range. He now appeals.

         W hen an attorney conscientiously examines a case and determines that any

appeal would be wholly frivolous, counsel may so advise the court and request

permission to withdraw. Anders, 386 U.S. at 744. Counsel must submit a brief to

the appellate court as w ell as to the client pointing to any potentially appealable

issues. The client may then choose to offer any argument to the court. If, upon

carefully examining the record, the court determines that the appeal is in fact

frivolous, it may grant the request to withdraw and dismiss the appeal. Id. In the

present case, acting pursuant to Anders, counsel provided M orales-Ramirez with a

copy of the appellate brief and he has declined the opportunity to file a pro se

brief.

         Counsel’s Anders brief raises two potentially appealable issues. First, the

brief questions whether M orales-Ramirez’s guilty plea was knowing and

voluntary. W e review a district court’s determination of this issue de novo.

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United States v. Libretti, 38 F.3d 523, 529 (10th Cir. 1994). In deciding that a

plea is knowing and voluntary, a district court must assess whether the defendant

fully understands the consequences of the plea. Id. Under Federal Rule of

Criminal Procedure 11(b)(1), defendants must be apprised of their rights, the

nature of the charges against them, and the maximum and minimum penalties they

face.

        The district court properly conducted the required colloquy in this case,

informing M orales-Ramirez of the rights he would waive by pleading guilty, and

asking him whether he was under the influence of drugs or alcohol, whether he

was being treated for any illness, or if he had been threatened or coerced into

pleading guilty. At the court’s request, the prosecutor read to M orales-Ramirez

the penalties he faced. Nothing in the record leads us to doubt M orales-Ramirez’s

answers on the day of the plea hearing. Accordingly, we hold that the district

court did not err in finding M orales-Ramirez knowingly and voluntarily entered

his guilty plea.

        Counsel also draws our attention to M orales-Ramirez’s sentence. W e

review a sentence for reasonableness. United States v. Kristl, 437 F.3d 1050,

1053 (2006). A sentence that falls within a properly calculated Guidelines range

is presumptively reasonable. Id. Factual findings made by the district court are




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reviewed for clear error and legal determinations are reviewed de novo. United

States v. Serrata, 425 F.3d 886, 906 (10th Cir. 2005).

      M orales-Ramirez’s Presentence Report (PSR ) correctly calculated an

offense level of 21 and a criminal history category of III. The Guidelines provide

a base offense level of eight for illegal reentry and a 16-level enhancement if that

reentry occurs after a deportation following a conviction for a felony crime of

violence. U.S.S.G. §§ 2L1.2(a) & (b)(1)(A)(ii). M orales-Ramirez then received a

three-level reduction for acceptance of responsibility. His criminal history

category of III was properly based on prior convictions for Receiving Stolen

Property and Attempted Common Law Robbery.

      M orales-Ramirez objected to the 16-level enhancement, arguing that the

narrative describing his conviction for Attempted Common Law Robbery was

incorrect, but admitting to the conviction itself. Attempted Robbery is a crime of

violence under the Guidelines. U.S.S.G. § 2L1.2 cmt. (B)(iii). The district court

considered M orales-Ramirez’s objection, as well as the 18 U.S.C. § 3553(a)

factors in determining that a 46-month sentence w as appropriate. M orales-

Ramirez has done nothing to overcome the presumption of reasonableness

afforded his sentence. Kristl, 437 F.3d at 1053. Even without that presumption,

however, we conclude that a 46-month sentence is reasonable under the

circumstances.



                                        -4-
      B ecause w e are not presented with any meritorious grounds for appeal, we

GR ANT counsel’s request to withdraw, AFFIRM the sentence, and DISM ISS

the appeal.

                                             ENTERED FOR THE COURT




                                             Carlos F. Lucero
                                             Circuit Judge




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