                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                         JUL 19 2001
                                    TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
 vs.                                                    No. 00-4136
                                                  (D.C. No. 99-CR-256-C)
 MARCOS FELIX-PACHECO,                                   (D. Utah)

           Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before EBEL, KELLY, and LUCERO, Circuit Judges. **


       Defendant-Appellant Marcos Felix-Pacheco pled guilty to one count of

knowingly and intentionally distributing 500 grams or more of a mixture or

substance containing a detectible amount of methamphetamine, 21 U.S.C. §§ 21

841(a)(1), (b)(1)(A), and aiding and abetting, 18 U.S.C. § 2. I R. doc. 98. In

exchange for the plea, the government agreed, inter alia, not to recommend a


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
       **
         After examining the briefs and the appellate record, this three-judge
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); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
sentence longer than the statutory minimum of 120 months. Id. doc. 84, at 5.

After concluding that the applicable sentencing range was 108 to 135 months, the

district court sentenced Mr. Felix-Pacheco to 120 months of imprisonment and

five years of supervised release. II R. at 6. Mr. Felix-Pacheco appeals from this

sentence, asserting that it is “too long” and that he should have been sentenced to

108 months. Aplt. Br. at 4-5. Counsel for Mr. Felix-Pacheco has filed an Anders

brief, id. at 5; see Anders v. California, 386 U.S. 738, 744 (1967) (“[I]f counsel

finds his case to be wholly frivolous, after a conscientious examination of it, he

should so advise the court and request permission to withdraw.”), and concluded

“that there are no meritorious grounds for appeal.” Aplt. Br. at 5. Counsel has

sent a letter to this effect, along with a copy of her brief, to Mr. Felix-Pacheco.

Id.; Motion to Withdraw (filed Dec. 18, 2000). Counsel now requests that she be

allowed to withdraw as counsel for Mr. Felix-Pacheco. Motion to Withdraw

(filed Dec. 18, 2000).

      We have reviewed the entire record, including the transcript of the

sentencing proceedings and presentence report. Although the district court

misstated Mr. Felix-Pacheco’s adjusted offense level, failed to address Mr. Felix-

Pacheco’s acceptance of responsibility, and cited the wrong guideline provision in

concluding that Mr. Felix-Pacheco qualified for the safety valve, the district court




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sentenced Mr. Felix-Pacheco within the appropriate guideline range. 1 Mr. Felix-

Pacheco’s claim that his sentence is too long is therefore “wholly frivolous”

Anders, 386 U.S. at 744, and we DISMISS his appeal as one not contemplated

under 18 U.S.C. § 3742(a). United States v. Neary, 183 F.3d 1196, 1198 (10th

Cir. 1999); United States v. Garcia, 919 F.2d 1478, 1482 (10th Cir.1990).

Counsel’s motion to withdraw is GRANTED.

                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




      1
          Mr. Felix-Pacheco’s base offense level was 36, and he had a criminal
history category of I. II R. at 3; III R. at 4-5. The district court decreased Mr.
Felix-Pacheco’s sentence two levels because he qualified for the safety valve. II
R. at 3. In so doing, however, the district court mistakenly referenced § 5K1.2,
id., rather than § 5C1.2 and § 2D1.1(b)(6), as the applicable safety valve
provision. See III R. at 4. We assume that district court adopted the presentence
report’s recommendation of a three-level downward adjustment for acceptance of
responsibility. Id. at 4-5. The district court determined that the applicable
sentencing range was 108 to 135 months. II R. at 3. Based on this sentencing
range, the adjusted offense level was therefore 31, see U.S.S.G. Ch. 5 Pt. A
(1998), not 34 as the district court concluded. II R. at 3.
        These errors do not create an appealable issue--Mr. Felix-Pacheco would
have received 151 to 188 months if the district court’s calculation of the offense
level was in fact correct. U.S.S.G. Ch. 5 Pt. A. (1998).

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