* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata and collateral estoppel.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 

### 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 be low, we grant counsel’s motion-2-

to withdraw and dismiss the appeal. Mr. Hooks was originally convicted of two firearm p ossession charges. On direct appeal to this court, one of those convictio ns 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 See United States v. Hooks , No. 01-5097, 2002 WL 126999 (10th Cir. Feb. 1, 2002) (unpublished dispos ition). The case was remanded for resentencing on the remaining convicti on. Mr. Hooks was resentenced to fifty-five months imprisonment, whic h was at the low end of the applicable guideline range of fifty-one to sixty-th ree months and well below the statutory maximum of ten years. The term of impris onment was the same as the one originally imposed for this conviction. Neith er Mr. Hooks nor his attorney raised any objections at the resentencing proceedin g. Andersholds that if counsel finds a case to be wholly fr ivolous 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 h e 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-3-

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 h ave been raised in the prior direct appeal has been waived and may not now be considere d. 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 evid ence 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 Andersbrief, a sentence that is within the correct guideline range, barring a few narrow e xceptions, is not appealable. United States v. Garcia , 919 F.2d 1478, 1481 (10th Cir. 1990). After care ful review, we agree with counsel that no non-frivolous grounds for appeal appear on this record. We see no error in the resentencing p roceeding. Accordingly, we GRANT counsel’s motion to withdraw and we DISMISS the appeal. ENTERED FOR THE COURT Stephanie K. Seymour Circuit Judge