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UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
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UNITED STATES, JOSE RUBEN CALLENTE- BARRIENTOS, |
No. 03-6099 (No. CR-02-221-L) (W.D. Okla.) |
Callente-Barrientos is an alien who was deported to Mexico first in 1995 and then again in 1997, following separate felony convictions. After pleading guilty to being in the United States in violation of 8 U.S.C. § 1326, he was sentenced to a term of seventy-seven months imprisonment and two years supervised release. Callente-Barrientos has asked counsel to appeal the district court's sentence as excessive for the offense of illegal reentry. Anders instructs that a counsel who, after conscientious examination, finds a case to be frivolous should advise the court and request permission to withdraw. 386 U.S. at 744. In addition, counsel must submit a brief both to the court and to his client referring to anything in the record that arguably supports the appeal. Id. If upon a complete examination of all proceedings, we agree that the appeal is frivolous, we will grant counsel's request to withdraw and dismiss the appeal. Id.
At the sentencing hearing, Callente-Barrientos did not object to the presentence report, but rather argued that the resulting guideline range of seventy-seven to ninety-six appeared to him to be excessive. He does not argue that the Sentencing Guidelines were computed incorrectly on appeal. Rather, he asserts that the sentencing court did not give adequate reasons for its sentence as required by 18 U.S.C. § 3553(c) and imposed a sentence which was excessive and greater than necessary, in light of the factors that a district court must consider when imposing a sentence. See 18 U.S.C. § 3553(a). Callente-Barrientos therefore requests that we vacate his sentence and remand for resentencing.
Our review of the record reveals nothing that indicates that the sentence imposed was in violation of the law or the result of a misapplication of the Sentencing Guidelines, nor was there any motion before the court requesting a downward departure from the Guidelines. A violation of 8 U.S.C. § 1326(a) results in a base offense level of eight. U.S.S.G. § 2L1.2. The presentence report added sixteen levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i) because Callente-Barrientos was deported previously following drug trafficking offenses for which he received sentences exceeding thirteen months; the presentence report then subtracted three levels pursuant to U.S.S.G. § 3E1(a) & (b) for acceptance of responsibility, resulting in a total offense level of twenty-one. Callente-Barrientos' total criminal history points established a criminal history category of VI, which when combined with his offense level of twenty-one, resulted in a guideline range of seventy-seven to ninety-six months. The district court's sentence was at the bottom of the established range.
Because we conclude that the record establishes no non-frivolous grounds
for appeal, we DISMISS Callente-Barrientos's appeal under Anders,
and
GRANT counsel's motion to withdraw. Anders, 386 U.S. at 744.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
*. The case is unanimously ordered submitted without oral argument pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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.
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