United States v. Rodriguez-Lopez

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 6 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 02-3129
D.C. No. 01-CR-10130-01 WEB
MAXIMILIANO RODRIGUEZ- (D. Kansas.)
LOPEZ,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before EBEL, LUCERO, and O’BRIEN, Circuit Judges.
Maximiliano Rodriguez-Lopez, an alien deported after being convicted of
an aggravated felony, pled guilty to a charge of being found in the United States
in violation of 8 U.S.C. § 1326(a) and (b)(2). He was sentenced by the district
court to forty-one months’ imprisonment and three years of supervised release,
*
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judgment is not binding precedent, except under the doctrines of law of the case,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.
and appeals his sentence. We exercise jurisdiction pursuant to 18 U.S.C.
§ 3742(a) and 28 U.S.C. § 1291, and affirm.
On appeal, counsel for Rodriguez-Lopez filed an Anders brief and moved
to withdraw as counsel. See Anders v. California, 386 U.S. 738, 744 (1967)
(permitting counsel who considers an appeal to be wholly frivolous to advise the
court of that fact, request permission to withdraw from the case, and submit a
brief referring to those portions of the record that arguably support the appeal).
In the Anders brief, counsel stated that he could find no error in the district
court’s imposition of the forty-one-month sentence, but reported that Rodriguez-
Lopez considered the sentence too harsh. Rodriguez-Lopez was afforded an
opportunity to respond to the Anders brief, but declined to do so.
We have fully examined the proceedings as required by Anders, id., and
conclude that the appeal is wholly frivolous. The district court properly
calculated the offense level and criminal history category. Although the United
States had recommended a sentence at the low end of the applicable guideline
range, the district court rejected this recommendation and imposed a sentence at
the top of the range, taking into consideration Rodriguez-Lopez’s extensive prior
criminal history. We have held that a district court can impose any sentence
within the applicable guideline range without entitling the defendant to withdraw
the guilty plea. United States v. Siedlik, 231 F.3d 744, 749 (10th Cir. 2000).
-2-
“We are unwilling to scrutinize sentencing justifications offered by a district
court when the sentence is within an admittedly appropriate range unless those
justifications implicate 18 U.S.C. § 3742(a)(1) or (2).” United States v. Garcia,
919 F.2d 1478, 1482 (10th Cir. 1990). In this case, the district court’s sentence
was neither contrary to law nor an incorrect application of the sentencing
guidelines. Thus, 18 U.S.C. § 3742(a)(1) and (2) are not implicated.
We see no issues in this case that might properly be the subject of an
appeal. Accordingly, counsel’s motion to withdraw is GRANTED, and
Rodriguez-Lopez’s conviction is AFFIRMED.
The mandate shall issue forthwith.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
-3-