                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                   December 18, 2006
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court



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

          Plaintiff-Appellee,

 v.                                                    No. 04-2346
                                                   (D.C. No. CR-04-960)
 M A G D A LEN O MA C IA S-M A DRID,                  (New M exico)
 also known as M anuel M acias-M adrid,
 also know n as Jesus Jose M acias,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


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




      M agdaleno M acias-M adrid, a citizen of M exico, pled guilty to reentering

the United States following deportation for an aggravated felony. The district

court accepted his plea and sentenced him to a term of incarceration at the bottom


      *
       After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The 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judgment is not binding precedent, except under the doctrines of law of the case,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, or 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).
of the applicable guideline range. M r. M acias-M adrid filed a timely notice of

appeal. His counsel filed an Anders brief and moved to withdraw. After

considering counsel’s brief and reviewing the record, we conclude there are no

non-frivolous grounds on which M r. M acias-M adrid could appeal his sentence.

Accordingly, we grant counsel’s motion to withdraw and dismiss this appeal.

      M r. M acias-M adrid was apprehended near Cotton, New M exico and, when

questioned by Border Patrol agents, admitted to being a citizen of M exico and in

the U nited States illegally. Immigration records subsequently revealed M r.

M acias-M adrid had been deported twice, the second time following a conviction

for conspiracy to possess with intent to distribute 50 kilograms or more of

marijuana.

      M r. M acias-M adrid pled guilty, without a plea agreement, to illegal reentry

following conviction for an aggravated felony. The United States Probation

Office prepared a presentence report (PSR ) calculating an offense level of 21 and

a criminal history category of IV, resulting in a suggested sentencing range of 57

to 71 months. M r. M acias-M adrid filed a motion for downward departure on the

grounds that he reentered the United States solely for the purpose of earning

money to pay for his wife’s life-saving operation, and that reentering the United

States was a lesser harm than permitting his wife to die because he could not pay

for her surgery. The government objected to the motion.

      Prior to sentencing, M r. M acias-M adrid and the government agreed to a 2-

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level reduction, bringing his total offense level to 19 and thereby reducing the

applicable sentencing range to 46 to 57 months. At the sentencing hearing, the

district court adopted the PSR’s calculations as well as the parties’ agreement

regarding the reduction in offense level. Rec., vol. IV at 7-9. The court then

sentenced M r. M acias-M adrid to 46 months, a term at the bottom of the applicable

guideline range. The court also sentenced M r. M acias-M adrid to 6 months

incarceration for violating the terms of his supervised release pursuant to a

previous conviction, to run concurrently with his 46-month sentence.

      Little more than a month later, the United States Supreme Court decided

United States v. Booker, 543 U.S. 220 (2005), and M r. M acias-M adrid moved for

reconsideration of his sentence in light of that opinion. Rec., vol. I at 29. The

district court granted his motion, and M r. M acias-M adrid filed a sentencing

memorandum in which he argued for a lesser sentence on the same grounds as

those presented in his previous motion for a downward departure. Id. at 41. He

also contended the sentence he received for his marijuana conviction was greater

than sentences now received by defendants convicted of the same offense, thereby

over-representing his criminal history score. The district court again sentenced

M r. M acias-M adrid to 46 months incarceration under the now-advisory

guidelines, and he filed a notice of appeal. Asserting he could not discover any

non-frivolous grounds for an appeal, M r. M acias-M adrid’s counsel filed a motion

to withdraw and an Anders brief.

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      The Supreme Court’s decision in Anders v. California, 386 U.S. 738, 744

(1967), authorizes counsel to request permission to withdraw where counsel

conscientiously examines a case and determines that an appeal would be wholly

frivolous. Under Anders, counsel must submit a brief to his client and this court

indicating any potential grounds for appeal based on the record. Id. His client

may choose to submit arguments to the court in response. Id. W e must then

conduct a full examination of the record to determine whether any claim raised by

the client is not wholly frivolous. Id. If we conclude after such an examination

that the appeal is frivolous, we may grant counsel’s motion to withdraw and

dismiss the appeal. Id.

      In his Anders brief, counsel did not identify a single potential ground for

appeal. M oreover, despite being served the Anders brief and given two

opportunities by this court to file a response or an appeal brief, M r. M acias-

M adrid has failed to do either. Based on our own examination of the record, we

conclude there are no non-frivolous appealable issues.

      M r. M acias-M adrid pled guilty to illegal reentry and there is no evidence in

the record that his plea was made unknowingly or involuntarily. M r. M acias-

M adrid did not object to the PSR ’s calculations prior to sentencing, nor can we

discover any errors in those calculations. Finally, we find no evidence in the

record to suggest that M r. M acias-M adrid’s 46-month sentence was unreasonable.

See United States v. Galarza-Payan, 441 F.3d 885, 887 (10th Cir. 2006)

                                          -4-
(Following Booker, “[w]e review sentences imposed by the district court for

reasonableness.”). In reviewing the reasonableness of M r. M acias-M adrid’s

sentence, “we consider whether the district court correctly applied the Guidelines

and whether the ultimate sentence is reasonable in light of the factors set forth in

18 U.S.C. § 3553(a).” United States v. Sanchez-Juarez, 446 F.3d 1109, 1114

(10th Cir. 2006). A sentence falling within the properly-calculated guidelines

range is entitled to a rebuttable presumption of reasonableness. Id.

      The district court entertained M r. M acias-M adrid’s arguments regarding his

wife’s condition and the necessity of entering the United States to pay for her

operation. After hearing these arguments, the district court agreed to a 2-level

reduction to the offense level proposed by the PSR. At his second sentencing, the

court also considered M r. M acias-M adrid’s argument that his criminal history

category was over-represented due to the discrepancies in prison terms between

defendants sentenced at the time he w as sentenced and defendants sentenced more

recently. In light of these arguments, the court twice sentenced M r. M acias-

M adrid to 46 months, a term at the very bottom of the applicable guideline range.

W e can find nothing in the record to suggest this sentence was unreasonable.




                                         -5-
      Because our review of the record failed to reveal any non-frivolous

appealable issues, we GRANT counsel’s motion to withdraw and DISM ISS this

appeal.

                                      ENTERED FOR THE COURT


                                      Stephanie K. Seymour
                                      Circuit Judge




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