|UNITED STATES OF AMERICA,
We have reviewed the entire record, including the transcript of the sentencing proceedings and presentence report. Although the district court misstated Mr. Felix-Pacheco's adjusted offense level, failed to address Mr. Felix-Pacheco's acceptance of responsibility, and cited the wrong guideline provision in concluding that Mr. Felix-Pacheco qualified for the safety valve, the district court sentenced Mr. Felix-Pacheco within the appropriate guideline range.(1) Mr. Felix-Pacheco's claim that his sentence is too long is therefore "wholly frivolous" Anders, 386 U.S. at 744, and we DISMISS his appeal as one not contemplated under 18 U.S.C. § 3742(a). United States v. Neary, 183 F.3d 1196, 1198 (10th Cir. 1999); United States v. Garcia, 919 F.2d 1478, 1482 (10th Cir.1990). Counsel's motion to withdraw is GRANTED.
Entered for the Court
Paul J. Kelly, Jr.
*. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This 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.
2. After examining the briefs and the appellate record, this three-judge 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); 10th Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
1. Mr. Felix-Pacheco's base offense level was 36, and he had a criminal history category of I. II R. at 3; III R. at 4-5. The district court decreased Mr. Felix-Pacheco's sentence two levels because he qualified for the safety valve. II R. at 3. In so doing, however, the district court mistakenly referenced § 5K1.2, id., rather than § 5C1.2 and § 2D1.1(b)(6), as the applicable safety valve provision. See III R. at 4. We assume that district court adopted the presentence report's recommendation of a three-level downward adjustment for acceptance of responsibility. Id. at 4-5. The district court determined that the applicable sentencing range was 108 to 135 months. II R. at 3. Based on this sentencing range, the adjusted offense level was therefore 31, see U.S.S.G. Ch. 5 Pt. A (1998), not 34 as the district court concluded. II R. at 3.
These errors do not create an appealable issue--Mr. Felix-Pacheco would have received 151 to 188 months if the district court's calculation of the offense level was in fact correct. U.S.S.G. Ch. 5 Pt. A. (1998).