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

determined unanimously that oral argument would not materially 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 oral argument. 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judgment is not binding precedent, except under the doctrines of law of the case,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. 

F I L E D

United States Court of Appeals

Tenth Circuit

AUG 20 2003

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANDRE EDWARD HOOKS, a/k/a

Andre Edward Simmons,

Defendant-Appellant.

No. 02-5158

(D.C. No. 00-CR-149-K)

(N.D. Oklahoma)

ORDER AND JUDGMENT*

Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.

Andre Edward Hooks appeals his resentencing for his conviction for

possession of a firearm after conviction of a felony. Mr. Hooks’ counsel filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967), and moves for leave

to withdraw as counsel. For the reasons set out below, we grant counsel’s motion
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to withdraw and dismiss the appeal. 

Mr. Hooks was originally convicted of two firearm possession charges. On

direct appeal to this court, one of those convictions was vacated based on a

double jeopardy violation. See United States v. Hooks, No. 01-5097, 2002 WL

126999 (10th Cir. Feb. 1, 2002) (unpublished disposition). The case was

remanded for resentencing on the remaining conviction. Mr. Hooks was

resentenced to fifty-five months imprisonment, which was at the low end of the

applicable guideline range of fifty-one to sixty-three months and well below the

statutory maximum of ten years. The term of imprisonment was the same as the

one originally imposed for this conviction. Neither Mr. Hooks nor his attorney

raised any objections at the resentencing proceeding. 

Anders holds that if counsel finds a case to be wholly frivolous after

conscientious examination, he may advise the court and request permission to

withdraw. Counsel must also submit to both the court and his client a brief

referring to anything in the record arguably supportive of the appeal. Anders, 386

U.S. at 744. The client may then raise any point he chooses, and the court

thereafter undertakes a complete examination of all proceedings and decides

whether the appeal is in fact frivolous. If it so finds, it may grant counsel’s

request to withdraw and dismiss the appeal. Id. Counsel provided Mr. Hooks

with a copy of the appellate brief. Mr. Hooks in turn filed a pro se appellate
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brief.

It is important to note at the outset that because this is an appeal of a

resentencing only, any issues on appeal must relate to that resentencing. Any

issue related to the conviction itself that could have been raised in the prior direct

appeal has been waived and may not now be considered. See United States v.

Parker, 101 F.3d 527, 528 (7th Cir. 1996). Mr. Hooks’ pro se argument does not

encompass any issue relevant to resentencing. The only issue Mr. Hooks raises in

his pro se filing appears to relate to the sufficiency of evidence at trial. This

issue, which could have been raised on the original direct appeal, has been waived

and we do not consider it here. 

As Mr. Hooks’ attorney notes in his Anders brief, a sentence that is within

the correct guideline range, barring a few narrow exceptions, is not appealable. 

United States v. Garcia, 919 F.2d 1478, 1481 (10th Cir. 1990). After careful

review, we agree with counsel that no non-frivolous grounds for appeal appear on

this record. We see no error in the resentencing proceeding. 

Accordingly, we GRANT counsel’s motion to withdraw and we DISMISS

the appeal. 

ENTERED FOR THE COURT

Stephanie K. Seymour

Circuit Judge