F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
April 11, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AM ERICA,
Plaintiff–Appellee, No. 06-2257
v. (Case No. CR-06-1395 RB)
LUCIO M ESA-A RAGON, (D .N.M .)
Defendant–Appellant.
OR D ER AND JUDGM ENT *
Before BR ISC OE, M cKA Y, and M cCO NNELL, Circuit Judges.
After examining the briefs and the appellate record, this panel has
determined unanimously that oral argument would not be of material assistance in
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.
Defendant pled guilty to illegal re-entry of a deported alien previously
convicted of an aggravated felony, in violation of 8 U.S.C. § 1326 (a)(1), (a)(2),
and (b)(2). Based on a stipulated offense level of nineteen 1 and a criminal history
*
This order and judgment is not binding precedent, except under the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.
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W ithout the stipulation, Defendant’s offense level would be twenty-one.
category of II, Defendant was sentenced to thirty-three months’ imprisonment, the
bottom of the applicable guideline range.
This case comes to us on defense counsel’s motion to withdraw as counsel.
In compliance with Anders v. California, 386 U.S. 738 (1967), he has filed a brief
in support of that motion. According to the brief, Defendant wishes to appeal his
punishment as excessive. Counsel asserts that this issue is without merit and that
there are no other non-frivolous issues for appeal. Defendant has not filed a
response to the Anders brief.
W e agree with counsel that the district court correctly calculated the
Guideline range and imposed a reasonable sentence. Pursuant to his plea
agreement, Defendant received a bargained-for reduction in the Guideline range
based on the stipulated offense level. Defendant did not object to the Guideline
calculation below. In fact, in the plea agreement Defendant agreed that his
criminal history had been correctly calculated and that the advisory Guideline
range determined in the presentence report (“PSR”) was reasonable in light of 18
U.S.C. § 3553 and United States v. Booker, 543 U.S. 220 (2005). At sentencing,
the district court considered Defendant’s request for leniency, the PSR’s factual
findings, and the § 3553 factors and sentenced Defendant at the bottom of the
correctly-calculated Guideline range. W e see nothing unreasonable about the
resulting sentence. See Booker, 543 U.S. at 261.
After an examination of the record, we conclude that there are no non-
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frivolous issues for Defendant to appeal. W e therefore GRANT counsel’s motion
to withdraw and affirm the judgment and sentence.
Entered for the Court
M onroe G. M cKay
Circuit Judge
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