*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, or 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

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, this panel has determined

unanimously to honor the parties’ request for a decision 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. The
1 Anders holds that if counsel finds a case to be wholly frivolous after

conscientious examination, she should so advise the court and request permission

to withdraw. Counsel must in addition submit a brief referring to anything in the

record arguably supportive of the appeal both to the court and to her client. The

client may then raise any points he chooses, and the appellate court thereafter

undertakes a complete examination of all the proceedings and decides whether the

appeal is wholly frivolous. If it so finds, it may grant counsel’s request to

withdraw. 386 U.S. at 744. Counsel here carefully fulfilled her obligations under

Anders.

-2-

Government filed a notice of its intent to seek a sentence enhancement under 8

U.S.C. § 1326(b)(2) on the basis of Mr. Hernandez’ prior convictions. Mr.

Hernandez subsequently pled guilty and was sentenced 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 could 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 issue on appeal is whether the

trial court erred in sentencing Mr. Hernandez to seventy-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 level 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 conviction, id. § 2L1.2(b)(1)(A). The
2

 We note that Mr. Hernandez did not object to the presentence report,

which recommended the sixteen level enhancement, and that he stipulated during

his guilty plea proceedings to the fact that his criminal history included the two

aggravated felony convictions upon which the Government relied in seeking the

enhancement.

-3-

Commentary to the guideline defines aggravated felony by reference to 8 U.S.C. §

1101(a)(43), see U.S.S.G. § 2L1.2, comment. (n.1), which in turn defines

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 convictions in seeking the

above enhancement, a grand theft conviction in 1989 for which Mr. Hernandez

received a sixteen month sentence, and a vehicle burglary conviction in 1990 for

which he received a two-year sentence. Mr. Hernandez was represented by

counsel in both prosecutions. He was deported in 1996, 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).2

 The sentencing court adopted the presentence report,

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 the 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 history 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 years after his release from

confinement. His total criminal history score was therefore thirty, which placed

him in criminal history category VI. Our review reveals no error in the

calculation of Mr. Hernandez’ criminal history category.

Under the sentencing table, an offense level of twenty-one and a criminal

history category of VI provide for a sentencing range of seventy-seven to ninetysix months. Mr. Hernandez was sentenced to seventy-seven months, the lowest

possible sentence he could receive in that range, and 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 the guidelines, or is greater than

that provided by the applicable guideline range, or was imposed for an offense

that has no guideline range and is plainly unreasonable. See 18 U.S.C. § 3742(a). 

None of these circumstances apply here and the sentence 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 jurisdiction 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