* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### DEC 16 1998 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. JESUS HERNANDEZ-LOPEZ, aka Jesus Lopez, Defendant-Appellant. No. 98-4037 (D.C. No. 97-CR-430-K) (D. Utah)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BRORBY and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Jesus Hernandez-Lopez was charged with one count of illegal reentry into the United States after deportation in violation of 8 U.S.C. § 1326. The1 Anders holds that if counsel finds a case to be wholly fr ivolous after

conscientious examination, she should so advise the court and request permission to withdraw. Counsel must in addition submit a bri ef referring to anything in the record arguably supportive of the appeal both to th e court and to her client. The client may then raise any points he chooses, and th e appellate court thereafter undertakes a complete examination of all the procee dings and decides whether the appeal is wholly frivolous. If it so finds, it maygrant counsel’s request to withdraw. 386 U.S. at 744. Counsel here carefullyfulfilled her obligations under Anders

. -2- Government filed a notice of its intent to seek a s entence enhancement under 8 U.S.C. § 1326(b)(2) on the basis of Mr. Hernandez’ prior convictions. Mr. Hernandez subsequently pled guilty and was sentence d to seventy-seven months imprisonment followed by thirty-six months of supervised release. Mr. Hernandez appeals and we affirm. Mr. Hernandez requested his counsel to appeal only his sentence. Counsel subsequently filed a brief pursuant to Anders v. California , 386 U.S. 738 (1967), stating that in her opinion no meritorious issues c ould be raised on appeal and asking leave to withdraw as counsel. 1 Mr. Hernandez filed a pro se response challenging the length of his sentence. The only i ssue on appeal is whether the trial court erred in sentencing Mr. Hernandez to se venty-seven months in prison. The sentencing guideline applicable to the offense of conviction here is U.S.S.G. § 2L1.2. It provides for a base offense l evel of eight, id. § 2L1.2(a), and further provides for a sixteen-level enhancement if the defendant’s previous deportation was after an aggravated felony convicti on, id. § 2L1.2(b)(1)(A). The2We note that Mr. Hernandez did not object to the p resentence report,

which recommended the sixteen level enhancement, an d that he stipulated during his guilty plea proceedings to the fact that his cr iminal history included the two aggravated felony convictions upon which the Govern ment relied in seeking the enhancement. -3- Commentary to the guideline defines aggravated felo ny by reference to 8 U.S.C. § 1101(a)(43), see U.S.S.G. § 2L1.2, comment. (n.1), which in turn def ines aggravated felony as, inter alia “a theft offense ( including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year,” 8 U.S.C. § 1101(a)(43)(G). The Government relied on two prior state court conv ictions in seeking the above enhancement, a grand theft conviction in 1989 for which Mr. Hernandez received a sixteen month sentence, and a vehicle bu rglary conviction in 1990 for which he received a two-year sentence. Mr. Hernand ez was represented by counsel in both prosecutions. He was deported in 1 996, subsequent to these two convictions, as required for the application of both section 1326(b)(2) and U.S.S.G. § 2L1.2(b)(1). 2The sentencing court adopted the presentence repo rt, which calculated Mr. Hernandez’ base offense level as eight, increased sixteen levels on the basis of his prior aggravated felony convictions, and reduced three levels for his acceptance of responsibility, for a total offense level of twenty-one. After careful examination of the proceedings and th e applicable authorities, we see no error in the court’s determination.-4-

Mr. Hernandez had an extensive history of criminal convictions, which resulted in a subtotal of twenty-seven criminal his tory points. He was given a two-point upward adjustment under U.S.S.G. § 4A1.1( d) for committing the instant offense while on parole, and one additional point under section 4A1.1(e) for committing the instant offense less than two ye ars after his release from confinement. His total criminal history score was therefore thirty, which placed him in criminal history category VI. Our review re veals no error in the calculation of Mr. Hernandez’ criminal history cate gory. Under the sentencing table, an offense level of twe nty-one and a criminal history category of VI provide for a sentencing ran ge of seventy-seven to ninetysix months. Mr. Hernandez was sentenced to seventy -seven months, the lowest possible sentence he could receive in that range, a nd below the twenty-year maximum provided by section 1326(b)(2). We see no error in the sentence imposed. A defendant may only appeal a sentence if it was imposed in violation of law or as a result of an incorrect application of t he guidelines, or is greater than that provided by the applicable guideline range, orwas imposed for an offense that has no guideline range and is plainly unreason able. See 18 U.S.C. § 3742(a). None of these circumstances apply here and the sent ence is therefore not appealable.-5-

In his pro se response, Mr. Hernandez argues only that his sentence is too long for a crime that has no victims, and that the length of his sentence will impose a hardship on his family. We have no jurisd iction to review a sentencing court’s determination not to depart downward. See United States v. Castillo , 140 F.3d 874, 887-88 (10th Cir. 1998). After careful review, we conclude that the material before us establishes no ground for appeal. Counsel’s motion to withdraw is granted, and the judgment and sentence of the district court are AFFIRMED

. ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge