                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 January 8, 2010
                     UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                  Clerk of Court



    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                  No. 09-7048
                                             (D.C. No. 6:08-CR-00041-RAW-4)
    JORGE MONTANO, a/k/a Jorge                          (E.D. Okla.)
    Cardenas,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before MURPHY, McKAY, and BALDOCK, Circuit Judges.



         A jury convicted Jorge Montano of one count of conspiracy to possess with

intent to distribute and distribution of controlled substances (“Count One”) and

one count of possession of marijuana with intent to distribute (“Count Two”).

The jury concluded that less than one hundred grams of marijuana was

attributable to Montano. The district court sentenced Montano to seventy months’


*
       After examining the briefs 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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
imprisonment on Count One and sixty months on Count Two. Montano

announced at the sentencing hearing that he intended to appeal because he thought

the sentence on Count One was excessive. After sentencing, and at the request of

the government but outside the presence of defense counsel, the court reduced the

sentence on Count One to sixty months. By the time Montano received notice of

the sentence modification, however, he had already filed his notice of appeal.

Montano’s attorney has filed a brief under the authority of Anders v. California,

386 U.S. 738 (1967). Neither Montano nor the government has filed briefs in this

matter.

      Pursuant to Anders, Montano’s counsel has informed this court that this

appeal is wholly frivolous and has requested to withdraw. See id. at 744. As for

our obligation under Anders, see id., we have fully examined the record and agree

with counsel that this appeal is frivolous. The sentencing issue that triggered the

appeal in the first instance has been mooted; the evidence was sufficient to

sustain Montano’s conviction; and the evidence of another conspiracy presented

at trial could not have confused the jury.




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     After reviewing the record on appeal, we see no meritorious issues for

appeal. We therefore DISMISS this appeal and GRANT counsel’s motion to

withdraw.


                                                 Entered for the Court



                                                 Michael R. Murphy
                                                 Circuit Judge




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