F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 8 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 02-2156
v. D.C. No. CR-01-1389-JP
(D. New Mexico)
ARMANDO CANO-RODRIGUEZ,
Defendant - Appellant.
ORDER AND JUDGMENT
Before EBEL , LUCERO , and HARTZ , Circuit Judges.
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not binding precedent, except under the doctrines of law of the case, res judicata,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. 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.
Defendant Armando Cano-Rodriguez, a non-citizen who had previously
been deported after being convicted of an aggravated felony, pleaded guilty to
illegally reentering the United States in violation of 8 U.S.C. § 1326(a). He was
sentenced to 37 months’ imprisonment and three years’ supervised release. He
now appeals the length of his sentence. Counsel for Defendant filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), and moves for leave to
withdraw as counsel. For the reasons set forth below, we grant counsel’s motion
to withdraw and dismiss the appeal.
Defendant pleaded guilty to one count of illegally reentering the
United States after having previously been deported subsequent to conviction of
an aggravated felony. Dissatisfied with the Pre-Sentence Report’s (PSR)
recommended offense level of 21 and corresponding guideline imprisonment
range of 46 to 57 months, he moved for a downward departure, requesting that he
be sentenced in accordance with a range of 41 to 51 months. Still not satisfied
with the contemplated term of imprisonment, Defendant moved to withdraw his
guilty plea. Subsequently, he entered into a negotiated plea agreement under Rule
11(e)(1)(C), under which the parties agreed to an adjusted offense level of 19 and
stipulated that Defendant be sentenced at the lowest end of the guideline
imprisonment range, i.e., 37 to 46 months. Defendant’s revised PSR reflected this
agreement and recommended a sentencing range of 37 to 46 months.
At the sentencing hearing, Defendant’s counsel stated that he had received
the revised PSR, reviewed it with Defendant, and had no objections. Defendant
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then addressed the court. He apologized for his criminal activity, and asked the
court to “lower a little bit the time.” The district court accepted Defendant’s plea
agreement and sentenced him to 37 months in prison, the bottom of the agreed-
upon sentencing range.
Defendant now appeals, contending that under the circumstances of his
case, 37 months is too harsh a sentence. Defendant’s counsel has filed an Anders
brief, seeking leave to withdraw as counsel. According to the procedure set forth
in Anders, if counsel finds a case to be “wholly frivolous” after a “conscientious
examination,” he may advise the court and request permission to withdraw.
Anders, 386 U.S. at 744. Counsel must also submit to both the court and his
client a brief referring to anything in the record arguably supportive of the appeal.
Id. The client may then file additional materials with the court and raise any
point he chooses. Id. The court thereafter undertakes a complete examination of
all proceedings and determines whether the appeal is in fact frivolous. Id. If the
court so finds, it may grant counsel permission to withdraw and dismiss the
appeal. Id.
After careful review of the entire proceedings, we agree with counsel that,
in light of Defendant’s plea agreement, his appeal is frivolous. “A defendant
receiving a sentence under a Rule 11(e)(1)(C) plea agreement may appeal only
when his sentence ‘was imposed in violation of law [or] was imposed as a result
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of an incorrect application of the sentencing guidelines.’” United States v.
Sanchez, 146 F.3d 796, 797 (10th Cir. 1998) (quoting 18 U.S.C. §§ 3742(a)(1) &
(2)); see 18 U.S.C. § 3742(c)(1). Absent the presence of either condition, we lack
jurisdiction to review a defendant’s challenge to the district court’s sentencing
determination. See Sanchez, 146 F.3d at 797.
Here, Defendant has not argued that his sentence was “imposed in violation
of the law” or “as a result of an incorrect application of the sentencing
guidelines,” 18 U.S.C. §§ 3742(a)(1) & (2), or that his guilty plea was not
knowing and voluntary. And we find nothing in the record that would so indicate.
Indeed, Defendant was sentenced at the bottom of the stipulated guideline range.
Hence, we lack jurisdiction over his appeal.
Accordingly, we GRANT counsel’s request to withdraw and we DISMISS
the appeal.
Entered for the Court
Harris L Hartz
Circuit Judge
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