* The case is unanimously ordered submitted withoutoral argument

pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court g enerally 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 

### FEB 9 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES, Plaintiff - Appellee, v.JOSE RUBEN CALLENTEBARRIENTOS, Defendant - Appellant. No. 03-6099 (No. CR-02-221-L) (W.D. Okla.)

ORDER AND JUDGMENT *

Before KELLY , BRISCOE , and LUCERO , Circuit Judges.

Defendant Jose Ruben Callente-Barrientos pleaded gu ilty to unlawfully reentering the United States after deportation for an aggravated felony in violation of 8 U.S.C. § 1326(a). On appeal, he arg ues that the district court’s sentence is excessive. Counsel appointed to repres ent defendant filed a brief pursuant to Anders v. California , 386 U.S. 738 (1967), stating that in his2

judgment and belief the appeal raised no meritoriou s issues and asking leave to withdraw. Because we conclude that Callente-Barrie ntos’ claim is frivolous, we DISMISS the appeal and GRANT counsel’s motion to withdraw. Callente-Barrientos is an alien who was deported to Mexico first in 1995 and then again in 1997, following separate felony c onvictions. After pleading guilty to being in the United States in violation o f 8 U.S.C. § 1326, he was sentenced to a term of seventy-seven months impriso nment and two years supervised release. Callente-Barrientos has asked counsel to appeal the district court’s sentence as excessive for the offense of il legal reentry. Anders instructs that a counsel who, after conscientious examination , finds a case to be frivolous should advise the court and request permission to w ithdraw. 386 U.S. at 744. In addition, counsel must submit a brief both to the c ourt and to his client referring to anything in the record that arguably supports th e appeal. Id. If upon a complete examination of all proceedings, we agree t hat the appeal is frivolous, we will grant counsel's request to withdraw and dismis s the appeal. Id. At the sentencing hearing, Callente-Barrientos did not object to the presentence report, but rather argued that the resu lting guideline range of seventyseven to ninety-six appeared to him to be excessive . He does not argue that the Sentencing Guidelines were computed incorrectly on appeal. Rather, he asserts that the sentencing court did not give adequate rea sons for its sentence as required3

by 18 U.S.C. § 3553(c) and imposed a sentence whichwas excessive and greater than necessary, in light of the factors that a dist rict court must consider when imposing a sentence. See 18 U.S.C. § 3553(a). Callente-Barrientos therefor e requests that we vacate his sentence and remand forresentencing. Our review of the record reveals nothing that indic ates that the sentence imposed was in violation of the law or the result o f a misapplication of the Sentencing Guidelines, nor was there any motion bef ore the court requesting a downward departure from the Guidelines. A violatio n of 8 U.S.C. § 1326(a) results in a base offense level of eight. U.S.S.G. § 2L1.2. The presentence report added sixteen levels pursuant to U.S.S.G. § 2L1.2(b )(1)(A)(i) because CallenteBarrientos was deported previously following drug trafficking offenses for which he received sentences exceeding thirteen months; th e presentence report then subtracted three levels pursuant to U.S.S.G. § 3E1( a) & (b) for acceptance of responsibility, resulting in a total offense level of twenty-one. CallenteBarrientos’ total criminal history points establish ed a criminal history category of VI, which when combined with his offense level of twenty-one, resulted in a guideline range of seventy-seven to ninety-six mont hs. The district court’s sentence was at the bottom of the established range

. Because we conclude that the record establishes no non-frivolous grounds for appeal, we DISMISS Callente-Barrientos’s appeal under Anders , and4

GRANT counsel’s motion to withdraw. Anders , 386 U.S. at 744.

ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge