                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      May 25, 2006
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court


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

               Plaintiff-Appellee,                      No. 05-1171
          v.                                        District of Colorado
 ALD EN Y ELLOW EAG LE,                        (D.C. No. 04-CR -00155-PSF)

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      Alden Yelloweagle pleaded guilty to a one-count, superseding indictment

alleging that he violated 18 U.S.C. §2244(a)(2), by “engag[ing] in or caus[ing] a

sexual contact with [another person] . . . when the victim was physically

incapable of declining participation in, or comm unicating unwillingness to engage



      *
        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). This case is
therefore submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
in, the alleged sexual contact.” (R. Vol. I, Doc. 41.) On M arch 28, 2005, he was

sentenced to 12 months and 1 day in prison. M r. Yelloweagle timely appealed,

and his counsel, an assistant federal public defender, filed an Anders brief and

moved to withdraw as counsel. See Anders v. California, 386 U.S. 738 (1967).

Because we find that neither the Defendant nor his counsel raises any non-

frivolous issue on appeal, we grant counsel’s motion to withdraw and affirm the

judgm ent of the court below .

      In the Anders brief, defense counsel asserts that there are no viable

challenges to the validity of the sentence handed down by the district court. M r.

Yellow eagle received notice of counsel’s Anders brief and moved three times to

extend the time for providing a response, but never filed one. W e have examined

the record and conclude that Defendant’s appeal is wholly frivolous.

      Prior to sentencing, M r. Yelloweagle objected to what he considered factual

errors in the presentence report, which included allegations that suggested his

conduct constituted a more serious crime than the one for which he was

convicted. How ever, the district court specifically declined to consider those

allegations in calculating the sentence, noting that “[i]f there was a more serious

offense in this case, it should have been charged.” Thus, the issues to which the

Defendant objected prior to sentencing played no role in the outcome of the

sentence and do not constitute grounds for appeal.




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      The district court properly calculated the offense level and criminal history

category. The court also considered the applicable Guidelines range, weighed

several other relevant sentencing factors in accordance with 18 U.S.C. § 3553(a),

and arrived at a sentence well w ithin the range recommended by the Guidelines.

As such, the court’s sentence is entitled to a presumption of reasonableness and

should stand. United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006).

      The judgment of the United States District Court for the District of

Colorado is AFFIRM ED.

                                                Entered for the Court,

                                                M ichael W . M cConnell
                                                Circuit Judge




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