*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand 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 

### MAY 6 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. JUNIOR MELENDEZ-LOPEZ, a/k/a Martin Manrique; a/k/a Martin Gomez-Carillo; a/k/a Jose Cabanas; a/k/a Javier Mendez-Sanchez; a/k/a Javier Sanchez-Mendez; a/k/a Roberto Canales-Chinchilla, Defendant-Appellant. No. 98-4140 (D. Utah) (D.Ct. No. 98-CR-272-W)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ROBERTO CANALES-CHINCHILLA, a/k/aMartin Manrique; a/k/a Martin GomezCarillo; a/k/a Jose Cabanas; a/k/a JavierMendez-Sanchez; a/k/a Javier SanchezMendez; a/k/a Junior Melendez-Lopez, Defendant-Appellant. No. 98-4141 (D. Utah) (D.Ct. No. 98-CR-272-W)

____________________________ ORDER AND JUDGMENT *1 Mr. Melendez-Lopez actually filed two appeals – one under his proper surname

(Case No. 98-4140) and the other under an alias (Case No. 98-4141). The appeals are identical and were therefore consolidated.

2Pursuant to Anders v. California , 386 U.S. 738 (1967), counsel who finds a case to be wholly frivolous may so advise the court and request permission to withdraw. Id. at 744. Counsel must also file an accompanying brief referring to anything in the record that might arguably support the appeal. Id. -2- Before BRORBY , EBEL , and LUCERO , Circuit Judges.

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. 34.1.9(G). The case is therefore ordered submitted without oral argument.

Appellant Junior Melendez-Lopez appeals his sentenc e following his conviction on one count of reentry into the United States by a deported alien previously convicted for an aggravated felony, in v iolation of 8 U.S.C. § 1326(b)(2). His appeal 1 is brought by his attorney, who filed a motion to withdraw as attorney of record and a corresponding Anders brief 2 raising Mr. Melendez-Lopez’s contention “that his sentence is t oo lengthy for the type of crime he committed.” Mr. Melendez-Lopez received a copy of the Anders brief-3-

and instructions he could proceed in the matter pro se . We granted Mr. Melendez-Lopez’s two motions for extensions of time to file his pro se pleading for the purpose of raising any additional points on appeal. Mr. Melendez-Lopez has filed a third motion for an extension of time. We deny Mr. Melendez-Lopez’s motion for an extension. Based on our own independ ent review of the record, we conclude Mr. Melendez-Lopez’s appeal is wholly with out merit. We therefore grant counsel’s motion to withdraw and affirm Mr. M elendez-Lopez’s sentence.

Pursuant to a plea agreement, Mr. Melendez-Lopez pl ed guilty to one count of reentry into the United States by a deported ali en previously convicted of an aggravated felony. Under the United States Sentenc ing Guidelines, the total offense level for Mr. Melendez-Lopez’s conviction i s 24. See U.S.S.G. §§ 2L1.2(a) & (b)(1)(A). The sentencing judge subt racted three points for acceptance of responsibility. See U.S.S.G. § 3E1.1. Mr. Melendez-Lopez’s resulting 21-point criminal offense level, togetherwith his 12-point criminal history score, resulted in a criminal history range of V with a sentencing guideline range of seventy to eighty-seven months imprisonmen t. U.S.S.G. § 5A, Sentencing Table. Thus, the eighty-month sentence imposed by the sentencing judge falls within the specified guideline range.-4-

Mr. Melendez-Lopez’s right to appeal his sentence i s governed by 18 U.S.C. § 3742(a), which allows a defendant to appea l a sentence only if the sentence imposed: (1) is a violation of law, (2) i s imposed as a result of an incorrect application of the sentencing guidelines, (3) is greater than the sentence specified in the applicable guideline range, or (4) is imposed for an offense for which there is no sentencing guideline and is plain ly unreasonable. See United
States v. Garcia , 919 F.2d 1478, 1479 n.3 (10th Cir. 1990). This C ourt will not review the reasons underlying a district court’s de cision to impose a sentence within a proper guideline range other than for “fac ial illegality, improper calculations, or clearly erroneous fact findings.” United States v. Smith, 81 F.3d 915, 920 (10th Cir. 1996).

After a review of the record, we conclude Mr. Melen dez-Lopez’s sentence is not a violation of the law or due to any incorre ct application of the sentencing guidelines. In fact, Mr. Melendez-Lopez’s eighty-m onth sentence is well within the sentencing guideline range and is less than the maximum term provided by law.-5-

For these reasons, Mr. Melendez-Lopez’s sentence is AFFIRMED , and counsel’s motion to withdraw is granted. The mandate shall issue forthwith.
Entered by the Court: WADE BRORBY United States Circuit Judge