* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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 

### JUN 20 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.MAFFIOLI JAEN DAVILMARJEHOVANY, also known as Antonio Souza,

Defendant-Appellant. No. 02-2141 (D.C. No. CR-01-1092-JC) (D. New Mexico)

ORDER AND JUDGMENT *

Before PORFILIO and ANDERSON , Circuit Judges, and BRORBY , Senior Circuit Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.1 Anders holds that if counsel finds a case to be wholly fr ivolous after

conscientious examination, he may so advise the cou rt and request permission to (continued...) -2- Appellant Mr. Davilmar-Jehovany pled guilty to re-e ntry of an illegal alien after being deported for a prior aggravated f elony conviction, in violation of 8 U.S.C. § 1326(b)(2). The presentence report d etermined that Mr. Davilmar-Jehovany’s guideline offense level was 23, with a criminal history of III, yielding a guideline range of fifty-seven t o seventy-one months. The district court adjusted the offense level to 21 aft er finding no obstruction of justice. The adjusted guideline range was forty-si x to fifty-seven months. Mr. Davilmar-Jehovany was sentenced to a term of imprisonment of fifty months, which is within the guideline range. Mr. Davilmar-Jehovany appeals his sentence. A juri sdictional issue was raised by this court regarding the timeliness of Mr . Davilmar-Jehovany’s notice of appeal. The appeal was partially remanded to the d istrict court to rule on an extension of time by the defendant to file the noti ce of appeal. See Fallen v. United States , 378 U.S. 139, 142-144 (1964); United States v. Lucas , 597 F.2d 243 (10th Cir. 1979). On remand, the district court granted the extension of time. We have jurisdiction to hear this appeal. Mr. Davilmar-Jehovany’s appellate counsel has fileda brief pursuant to Anders v. California, 1 386 U.S. 738 (1967). In his Anders brief, counsel1 (...continued)

withdraw. Counsel must also submit to the court a brief referring to anything in the record arguably supportive of the appeal. The brief is then served upon the client, who may then raise any point he chooses, an d this court thereafter undertakes a complete examination of all proceeding s 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. Anders , 386 U.S. at 744. -3- concludes the district court correctly applied the guideline range and sentenced his client. Mr. Davilmar-Jehovany submitted a resp onse to the Anders brief, and argues (1) the district court used the wrong editio n of the sentencing guidelines; (2) the district court believed it lacked discretio n to downward depart; and (3) clerical error in the judgment. We review the district court’s interpretation and application of the sentencing guidelines de nov o, and the court’s underlying findings of fact for clear error. United States v. Pappert , 112 F.3d. 1073, 1078 (10th Cir. 1997). Mr. Davilmar-Jehovany contends he was not sentencedunder the guidelines in effect at the time of his sentencing, as is cust omary. He was sentenced on April 29, 2002. The presentence report clearly states the November 1, 2001 edition of the United States Sentencing Commissions Guideline Manual was used in computing Mr. Davilmar-Jehovany’s sentence. Und er USSG § 2L1.2(b)(1)(A)(ii) in the November 1, 2001 editio n, if the defendant was previously deported after a conviction for a felony that is a crime of violence, the base level is increased by 16 levels. Application Note 1.(B)(ii) states a crime of-4-

violence includes both an offense “that has as an e lement of the use, attempted use, or threatened use of physical force against th e person of another;” and “forcible sex offenses (including sexual abuse of aminor).” Appellant’s felony conviction was for Sexual Assault of a Child. Acco rdingly, his base level was correctly increased by sixteen levels. Mr. Davilmar-Jehovany’s second argument is that the district court did not believe it had the discretion to downward depart. “[U]nless the judge’s language unambiguously states the judge does not believe he has authority to downward depart, we will not review his decision.” United States v. Rodriguez , 30 F.3d 1318, 1319 (10th Cir. 1994). At sentencing, appell ant did not articulate a basis for a downward departure, accordingly, the districtcourt could not ignore the guidelines. R. Vol. 3 at 5-6. Lastly, Mr. Davilmar-Jehovany claims the district c ourt imposed an unsupervised release term of two years, yet in the judgment the unsupervised release term is indicated as two to three years. T he judgment unambiguously states an unsupervised release term of two years. After review of the entire proceedings, we conclude that the record establishes no non-frivolous ground for appeal. Th e appeal is therefore-5-

DISMISSED and counsel’s motion to withdraw is GRANTED. Mr. Davilmar-Jehovany’s pro se Motion to Appoint Attorney is denied.

Entered for the Court

John C. Porfilio Circuit Judge