* The case is unanimously ordered submitted withoutoral 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 g enerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 6 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee, v.MAXIMILIANO RODRIGUEZLOPEZ, Defendant - Appellant. No. 02-3129 D.C. No. 01-CR-10130-01 WEB

(D. Kansas.)

ORDER AND JUDGMENT *

Before EBEL , LUCERO , and O’BRIEN , Circuit Judges.

Maximiliano Rodriguez-Lopez, an alien deported afte r being convicted of an aggravated felony, pled guilty to a charge of be ing 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 y ears of supervised release,- 2 -

and appeals his sentence. We exercise jurisdictionpursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and affirm. On appeal, counsel for Rodriguez-Lopez filed an And ers 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 w holly 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 RodriguezLopez 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 c ategory. Although the United States had recommended a sentence at the low end of the applicable guideline range, the district court rejected this recommendat ion and imposed a sentence at the top of the range, taking into consideration Rod riguez-Lopez’s extensive prior criminal history. We have held that a district cou rt can impose any sentence within the applicable guideline range without entit ling the defendant to withdraw the guilty plea. United States v. Siedlik , 231 F.3d 744, 749 (10th Cir. 2000).- 3 -

“We are unwilling to scrutinize sentencing justific ations offered by a district court when the sentence is within an admittedly app ropriate 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 applic ation 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 b e 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