                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      May 26, 2006
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court


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

               Plaintiff - Appellee,                    No. 05-8118
          v.                                            D. W yoming

 R ON A LD CO ZA D ,                              (D.C. No. 05-CR-150-B)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before TA CH A, HA RTZ, and TYM KOVICH, Circuit Judges.


      Ronald Cozad was sentenced to 60 months’ imprisonment after pleading

guilty to a drug-conspiracy charge. His counsel has filed an Anders brief, see

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

The brief notes only one possible issue for appeal— the alleged error in assigning

a criminal-history point for a prior bad-check conviction— and explains why it has



      *
       After examining the brief and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
no merit. After reviewing the record, we agree that there are no meritorious

issues for appeal, grant the motion to withdraw, and dismiss the appeal.

      On August 12, 2005, M r. Cozad pleaded guilty in the United States District

Court for the District of W yoming to one count of conspiracy to possess with

intent to distribute and to distribute methamphetamine, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(B), and 846. The original presentence report (PSR)

determined that his criminal-history category was II, on the basis of one criminal-

history point for each of three prior convictions. Taking into account the

statutory mandatory minimum sentence of five years, the PSR calculated the

appropriate Guidelines range for M r. Cozad’s sentence to be 60 to 63 months’

imprisonment.

      M r. Cozad objected to being assigned criminal-history points for two of his

prior convictions: a bad-check conviction and a DUI conviction. The response

by the author of the PSR conceded the validity of the objection to the DUI

conviction but continued to assign a point for the bad-check conviction, resulting

in a revised criminal-history score of 2. M r. Cozad wished to lower his criminal-

history score to 1 to be eligible for the “safety valve” provided by 18 U.S.C.

§ 3553(f), which permits a sentencing court to depart below a mandatory

minimum in certain situations. At sentencing, however, the district court rejected

his objection to counting the bad-check conviction and accepted the Guidelines




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range calculated by the PSR. It imposed a sentence of 60 months’ imprisonment,

the mandatory minimum. M r. Cozad timely appealed.

      In compliance with Anders, counsel provided M r. Cozad with a copy of his

appellate brief. M r. Cozad has not filed a pro se reply. W e can readily dispose of

the one issue raised in the brief— the alleged error in assessing one criminal-

history point for M r. Cozad’s bad-check conviction.

      M r. Cozad was charged with issuing a bad check in Nebraska in 2000 and

was sentenced to a year of probation. He now argues that he should not have

been given a criminal-history point for the conviction because he pleaded no

contest to a misdemeanor with a maximum penalty of six months’ imprisonment.

As his counsel points out, criminal-history points are not awarded for every

misdemeanor conviction. United States Sentencing Guidelines § 4A1.2(c)

provides:

      Sentences for all felony offenses are counted. Sentences for
      misdemeanor and petty offenses are counted, except as follow s:

             (1)   Sentences for the following prior offenses and offenses
                   similar to them, by whatever name they are known, are
                   counted only if (A) the sentence was a term of probation
                   of at least one year or a term of imprisonment of at least
                   thirty days, or (B) the prior offense was similar to an
                   instant offense:

                   ...

                   Insufficient funds check

                   ....

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But the exemption for a listed offense does not apply “if . . . the sentence w as a

term of probation of at least one year.” Id. Because M r. Cozad received a

sentence of a year of probation on the bad-check charge, his conviction was to be

counted under the Guidelines. See United States v. Perez de Dios, 237 F.3d 1192,

1199 (10th Cir. 2001) (misdemeanor offense with sentence of one year of

probation counted in criminal history); United States v. Williams, 919 F.2d 1451,

1457 (10th Cir. 1990) (applying criminal-history point to offense for which “a

probation term of at least one year was imposed.”)

      There also being no other error apparent in the record, we GRANT

counsel’s motion for withdrawal and DISM ISS this appeal.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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