F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS FEB 11 2005
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 04-2003
v.
(D.C. No. CR-03-1331 BB)
(New Mexico)
ESAU MADRID-FLORES, also
known as Javier Armondo-Carreon,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, LUCERO, and O’BRIEN, Circuit Judges.
Esau Madrid-Flores pled guilty to reentry of an illegal alien after
deportation for a prior aggravated felony in violation of 8 U.S.C. § 1326(a)(1) and
(2) and 8 U.S.C. § 1326(b)(2). On appeal, Mr. Madrid-Flores’ counsel filed a
*
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judgment is not binding precedent, except under the doctrines of law of the case,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. 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.
brief pursuant to Anders v. California, 386 U.S. 738 (1967), and moved for leave
to withdraw. For the reasons set out below, we grant counsel’s motion to
withdraw and dismiss the appeal.
Anders holds that if counsel finds a case to be wholly frivolous after
conscientious examination, he may so advise the court and request permission to
withdraw. Counsel must submit to both the court and his client a brief referring
to anything in the record arguably supportive of the appeal. The client may then
raise any point he chooses, and the court thereafter must undertake a complete
examination of all proceedings to determine whether the appeal is in fact
frivolous. If it so finds, it may grant counsel’s request to withdraw and dismiss
the appeal. Id. at 744. Counsel has provided Mr. Madrid-Flores with a copy of
his appellate brief and Mr. Madrid-Flores has chosen not to file additional
material with this court.
In his Anders brief, counsel identified only one potentially appealable issue
for our consideration, whether the district court erred in its application of the
sentencing guidelines by determining Mr. Madrid-Flores’ criminal history
category was IV. A sentencing court’s determination of the facts as a basis for
application of the sentencing guidelines is reviewed under the clearly erroneous
standard of review. United States v. Torres, 53 F.3d 1129, 1142 n.13 (10th Cir.
1995), cert. denied, 515 U.S. 1152. The district court applied the following
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analysis to compute Mr. Madrid-Flores’ sentence. Mr. Madrid-Flores’ base
offense level for unlawfully entering or remaining in the United States was eight
pursuant to U.S.S.G. § 2L1.2. Because Mr. Madrid-Flores has a prior felony
conviction that is a crime of violence (sexual assault of a child), a sixteen level
increase was warranted in accordance with U.S.S.G. § 2L1.2(b)(1)(A). 1 In
addition, the court found that Mr. Madrid-Flores had demonstrated an acceptance
of responsibility for the offense of conviction and applied a three level reduction
under U.S.S.G. § 3E1.1. Thus, Mr. Madrid-Flores’ adjusted offense level was
twenty-one. According to the Presentence Investigation Report (PSR), he had
seven criminal history points, which established a criminal history category of IV
under the guidelines. The resulting guideline range was 57-71 months. The
district court sentenced Mr. Madrid-Flores to 57 months, the minimum sentence
authorized under the guideline range.
Although no objections were filed to the PSR, Mr. Madrid-Flores argued
through counsel at sentencing that he had not committed one of the prior crimes
enumerated in the PSR, for which he received one criminal history point. This
one point would shift Mr. Madrid-Flores’ criminal history category from IV to III,
which carries a guideline range of 46 to 57 months. In response, the probation
1
Mr. Madrid-Flores was deported on May 4, 2000, subsequent to a
conviction for Attempt to Commit 2nd Degree Assault, Larimer County District
Court, Fort Collins, Colorado (Case No. 99CR710).
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officer represented to the court that a records check was performed based on
NCIC fingerprint comparisons and the records indicated that Mr. Madrid-Flores
did in fact commit the prior crime at issue. Mr. Madrid-Flores offered no
evidence to the contrary. The district court thus did not err in finding that he
committed the prior crime.
In sum, after a careful review of the record, we conclude that Mr. Madrid-
Flores has no grounds for appeal. We have found nothing in the record to suggest
that Mr. Madrid-Flores’ sentence was excessive or that his criminal history
category should be reduced to III. We GRANT counsel’s request to withdraw
and DISMISS the appeal.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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