*

 This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicata and 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, this 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.
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Appellant Elaina Bailey, a federal prisoner represented 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 violating her probation terms, and

following a probation hearing, her probation was revoked and she was sentenced

to six months in prison and three years of supervised release. Months later, after

Ms. Bailey again admitted violating conditions of her supervised release, a

supervised release hearing was held. The district court determined she violated

the conditions admitted to, including the use of marijuana, as well as the

additional condition concerning failure to complete her community service.

Based on these violations, the district court revoked Ms. Bailey’s

supervised release and sentenced her to nine months imprisonment. In so doing,

the district court applied the applicable United States Sentencing Guidelines,

calculating her criminal history category at I and her sentencing range at three to

nine months. Ms. Bailey now appeals the district court’s revocation of her

supervised release and imposition of a nine-month sentence, which she is

currently serving, alleging the sentence is “too harsh.”

Ms. Bailey’s appointed counsel has filed a brief pursuant to Anders v. State
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of California, 386 U.S. 738, 744 (1967), explaining “no non-frivolous 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 law or incorrectly calculated, and

no evidence in the record shows her sentence was based on clearly erroneous

factual findings. Instead, counsel suggests sufficient evidence exists concerning

Ms. Bailey’s marijuana use and failure to comply with the other terms and

conditions of her supervised release to warrant revocation of her supervised

release and imposition of a nine-month sentence. In addition, Ms. Bailey’s

counsel contends this court lacks jurisdiction to review 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 within the Sentencing

Guidelines may not be appealed unless it is imposed in violation of law, as a

result of an incorrect application of the Guidelines, or is otherwise premised on

facial illegality, improper calculations, or clearly erroneous fact findings. See
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United States v. Garcia, 919 F.2d 1478, 1479, 1481 (10th Cir. 1990) (relying 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 defendant concedes the

sentence imposed falls within the appropriate Guidelines range. See Garcia, 919

F.2d at 1479, 1482.

After carefully reviewing the record, we agree with counsel that Ms.

Bailey’s sentence was not imposed in violation of law 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 concessions 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 counsel’s request to withdraw, and

we DISMISS Ms. Bailey’s appeal.

Entered by the Court:

WADE BRORBY

United States Circuit Judge