* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore submitted without o ral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel. The court ge nerally 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 

### FEB 11 2005 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ESAU MADRID-FLORES, also known as Javier Armondo-Carreon, Defendant-Appellant. No. 04-2003 (D.C. No. CR-03-1331 BB) (New Mexico)



### ORDER AND JUDGMENT *

Before SEYMOUR , LUCERO , and O’BRIEN , Circuit Judges.
Esau Madrid-Flores pled guilty to reentry of an ill egal alien after deportation for a prior aggravated felony in violat ion of 8 U.S.C. § 1326(a)(1) and (2) and 8 U.S.C. § 1326(b)(2). On appeal, Mr. Madr id-Flores’ counsel filed a-2-

brief pursuant to Anders v. California , 386 U.S. 738 (1967), and moved for leave to withdraw. For the reasons set out below, we grant counsel’s motion to withdraw and dismiss the appeal. Anders holds that if counsel finds a case to be wholly fri volous after conscientious examination, he may so advise the cou rt and request permission to withdraw. Counsel must submit to both the court an d his client a brief referring to anything in the record arguably supportive of th e appeal. The client may then raise any point he chooses, and the court thereafte r must undertake a complete examination of all proceedings to determine whetherthe appeal is in fact frivolous. If it so finds, it may grant counsel’s request to withdraw and dismiss the appeal. Id . at 744. Counsel has provided Mr. Madrid-Flores w ith a copy of his appellate brief and Mr. Madrid-Flores has chose n not to file additional material with this court. In his Anders brief, counsel identified only one potentially app ealable issue for our consideration, whether the district court e rred in its application of the sentencing guidelines by determining Mr. Madrid-Flo res’ criminal history category was IV. A sentencing court’s determinatio n of the facts as a basis for application of the sentencing guidelines is reviewe d under the clearly erroneous standard of review. United States v. Torres , 53 F.3d 1129, 1142 n.13 (10th Cir. 1995), cert. denied, 515 U.S. 1152. The district court applied the fo llowing1 Mr. Madrid-Flores was deported on May 4, 2000, subs equent to a

conviction for Attempt to Commit 2nd Degree Assault , Larimer County District Court, Fort Collins, Colorado (Case No. 99CR710). -3- analysis to compute Mr. Madrid-Flores’ sentence. M r. Madrid-Flores’ base offense level for unlawfully entering or remaining in the United States was eight pursuant to U.S.S.G. § 2L1.2. Because Mr. Madrid-F lores has a prior felony conviction that is a crime of violence (sexual assa ult of a child), a sixteen level increase was warranted in accordance with U.S.S.G. § 2L1.2(b)(1)(A). 1 In addition, the court found that Mr. Madrid-Flores ha d demonstrated an acceptance of responsibility for the offense of conviction andapplied a three level reduction under U.S.S.G. § 3E1.1. Thus, Mr. Madrid-Flores’ ad justed offense level was twenty-one. According to the Presentence Investigation Report (PSR), he had seven criminal history points, which established a criminal history category of IV under the guidelines. The resulting guideline rang e was 57-71 months. The district court sentenced Mr. Madrid-Flores to 57 mo nths, the minimum sentence authorized under the guideline range. Although no objections were filed to the PSR, Mr. M adrid-Flores argued through counsel at sentencing that he had not commi tted one of the prior crimes enumerated in the PSR, for which he received one cr iminal history point. This one point would shift Mr. Madrid-Flores’ criminal h istory category from IV to III, which carries a guideline range of 46 to 57 months. In response, the probation-4-

officer represented to the court that a records che ck was performed based on NCIC fingerprint comparisons and the records indicated that Mr. Madrid-Flores did in fact commit the prior crime at issue. Mr. M adrid-Flores offered no evidence to the contrary. The district court thus did not err in finding that he committed the prior crime. In sum, after a careful review of the record, we co nclude that Mr. MadridFlores has no grounds for appeal. We have found no thing in the record to suggest that Mr. Madrid-Flores’ sentence was excessive or that his criminal history category should be reduced to III. We GRANT counsel’s request to withdraw and DISMISS the appeal. ENTERED FOR THE COURT Stephanie K. Seymour Circuit Judge