This order and judgment is not binding precedent except under the *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.

FILED

United States Court of Appeals

Tenth Circuit

October 23, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 07-8005

v. (D. Wyoming)

HECTOR GONZALEZGUTIERREZ,

Defendant-Appellant.

 (D.C. No. 06-CR-00139-WFD)

ORDER AND JUDGMENT

*

Before HENRY, TYMKOVICH, and HOLMES, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. 

Hector Gonzalez-Gutierrez pleaded guilty to three federal criminal

offenses: conspiracy to possess with intent to distribute methamphetamine, a
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violation of 21 U.S.C. § 846, conspiracy to launder money, a violation of 18

U.S.C. § 1956, and use of a communications facility to facilitate a felony drug

offense, a violation of 21 U.S.C. § 843. As part of his plea agreement, Mr.

Gonzalez-Gutierrez “specifically wavie[d] his right to appeal the sentence he

receive[d].” Rec. vol. II at 8. Mr. Gonzalez-Gutierrez was sentenced to a total of

262 months’ imprisonment, which was at the low end of the recommended

guidelines range. The court ordered that the prison terms for each of the

convictions run concurrently. 

Mr. Gonzalez-Gutierrez filed a timely notice of appeal. On appeal, Mr.

Gonzalez-Gutierrez’s counsel has filed a brief pursuant to Anders v. California,

386 U.S. 738, 744 (1967). Counsel asks permission to withdraw from his

representation of Mr. Gonzalez-Gutierrez, contending that he “can not ethically

advance an appeal in this matter.” Aplt’s Br. at 2. Counsel further states that

“there is [no] meritorious issue to be advanced” on Mr. Gonzalez-Gutierrez’s

behalf. Id.

Under Anders, counsel may “request permission to withdraw where counsel

conscientiously examines a case and determines that any appeal would be wholly

frivolous.” United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005). In

such a case, “counsel must submit a brief to the client and the appellate court

indicating any potential appealable issues based on the record.” Id. The client is

then permitted to submit arguments to the court in response. The court must then
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fully examine the record “to determine whether defendant’s claims are wholly

frivolous.” Id. If so, the court may dismiss the appeal. 

In this case, Mr. Gonzalez-Gutierrez was served with counsel’s brief. 

However, Mr. Gonzalez-Gutierrez has not informed this Court of any issue that he

wishes to pursue on appeal. Based on our independent review of the record, we

agree with counsel that there are no non-frivolous grounds upon which Mr.

Gonzalez-Gutierrez could appeal his conviction or his sentence. The record

indicates that Mr. Gonzalez-Gutierrez’s plea was knowing and voluntary. 

Moreover, his sentence is supported by the applicable law and the facts of this

case. 

Accordingly, we DISMISS this appeal and GRANT counsel permission to

withdraw in this matter. 

Entered for the Court,

Robert H. Henry

United States Circuit Judge