*This order and judgment is not binding precedent except under the doctrines of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 12 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ELAINA BAILEY, Defendant-Appellant. No. 03-1265 (D. Colo.) (D.Ct. No. 01-CR-15-D)

ORDER AND JUDGMENT *

Before TACHA, Chief Judge, and PORFILIO and BRORBY , Senior Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist 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.-2-

Appellant Elaina Bailey, a federal prisoner represe nted by counsel, pled guilty to one count of knowingly making a false statement or representation in violation of 18 U.S.C. § 924(a)(1)(A) and received a sentence of five years probation. Thereafter, Ms. Bailey admitted violati ng her probation terms, and following a probation hearing, her probation was re voked and she was sentenced to six months in prison and three years of supervis ed release. Months later, after Ms. Bailey again admitted violating conditions of h er supervised release, a supervised release hearing was held. The district court determined she violated the conditions admitted to, including the use of ma rijuana, as well as the additional condition concerning failure to complete her community service.

Based on these violations, the district court revok ed Ms. Bailey’s supervised release and sentenced her to nine months imprisonment. In so doing, the district court applied the applicable United St ates Sentencing Guidelines, calculating her criminal history category at I and her sentencing range at three to nine months. Ms. Bailey now appeals the district c ourt’s revocation of her supervised release and imposition of a nine-month s entence, which she is currently serving, alleging the sentence is “too ha rsh.”

Ms. Bailey’s appointed counsel has filed a brief pu rsuant to Anders v. State-3-

of California , 386 U.S. 738, 744 (1967), explaining “no non-friv olous issues” exist for the purposes of her appeal and requesting permission to withdraw. Specifically, counsel contends Ms. Bailey’s appeal lacks a legally valid argument as her sentence was not imposed in violation of lawor incorrectly calculated, and no evidence in the record shows her sentence was ba sed on clearly erroneous factual findings. Instead, counsel suggests suffic ient evidence exists concerning Ms. Bailey’s marijuana use and failure to comply wi th the other terms and conditions of her supervised release to warrant rev ocation of her supervised release and imposition of a nine-month sentence. I n addition, Ms. Bailey’s counsel contends this court lacks jurisdiction to r eview Ms. Bailey’s sentence, given she concedes the district court placed her in the proper criminal history category, and her nine-month sentence falls within the appropriate guideline range. Although the holding in Anders entitles the defendant to raise additional points in response to counsel’s Anders brief, and such opportunity was given in this case, Ms. Bailey made no such filing. See Anders , 386 U.S. at 744.

Under 18 U.S.C. § 3742(a), a sentence that falls wi thin the Sentencing Guidelines may not be appealed unless it is imposedin violation of law, as a result of an incorrect application of the Guideline s, or is otherwise premised on facial illegality, improper calculations, or clearl y erroneous fact findings. See-4-

United States v. Garcia , 919 F.2d 1478, 1479, 1481 (10th Cir. 1990) (relyi ng on 18 U.S.C. § 3742(a)(1) and (2)). In applying this criteria, we have previously held this court lacks jurisdiction under § 3742 to review a district court’s sentence which is under twenty-four months, and where the de fendant concedes the sentence imposed falls within the appropriate Guide lines range. See Garcia , 919 F.2d at 1479, 1482.

After carefully reviewing the record, we agree withcounsel that Ms. Bailey’s sentence was not imposed in violation of l aw or as a result of an incorrect application of the Sentencing Guidelines, and is not otherwise improper under 18 U.S.C. § 3742. Given Ms. Bailey’s concess ions regarding her criminal history and the fact her sentence falls within the appropriate Guidelines range, we further agree her appeal presents no non-frivolous issues and we lack jurisdiction to review her sentence. Accordingly, we grant coun sel’s request to withdraw, and

we DISMISS Ms. Bailey’s appeal.

Entered by the Court: WADE BRORBY United States Circuit Judge