*

 This order and judgment is not binding precedent, except under the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

MAR 17 1999

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

 v.

EDMUNDO JAVIER-MARQUEZ,

also known as Adan Marquez-Reyna,

Defendant-Appellant.

No. 98-4143

(D.C. No. 98-CR-187-C)

(D. Utah)

ORDER AND JUDGMENT*

Before ANDERSON, KELLY, and BRISCOE, 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(G). Therefore, the

case is ordered submitted without oral argument.

Defendant Edmundo Javier-Marquez pleaded guilty to illegal reentry after

deportation, in violation of 8 U.S.C. § 1326, and was sentenced to forty-six
-2-

months’ imprisonment. Defendant’s counsel has filed an Anders brief (Anders v.

California, 386 U.S. 738, 744 (1967)), and defendant has filed a pro se letter

contending the district court erred in imposing his sentence.

We have examined the record on appeal and conclude the district court

properly sentenced defendant. The court imposed a base offense level of eight,

plus a sixteen-level enhancement for defendant’s reentry after he was deported

following an aggravated felony conviction (a Utah state conviction for possession

with intent to distribute a controlled substance). U.S.S.G. § 2L1.2(a) & (b)(1)(A). 

The court granted a three-level downward adjustment for acceptance of

responsibility. U.S.S.G. § 3E1.1. Based on defendant’s total offense level and

his criminal history category of III, the guideline range was forty-six to fiftyseven months. The district court imposed a sentence at the bottom of the range.

In his pro se letter, defendant contends the district court considered two

prior crimes which were committed by his brother. The record reveals defendant

acknowledged at sentencing that neither of the crimes committed by his brother

resulted in criminal history points or affected his criminal history category or

guideline range. This argument is without merit.

Defendant also asserts the court enhanced his sentence for a felony drug

conviction to which he pleaded guilty when he was in fact innocent. A sentencing

court cannot consider a collateral attack on a prior conviction, with the exception
-3-

of a collateral attack based on complete denial of counsel. See United States v.

Simpson , 94 F.3d 1373, 1381 (10th Cir. 1996). Defendant’s argument is based

solely on his claim of factual innocence. He was represented by counsel when he

entered a plea of guilty to the crime. The district court could not disregard the

conviction and did not err in relying on it to enhance defendant’s sentence.

AFFIRMED. Counsel’s motion to withdraw is GRANTED. The mandate

shall issue forthwith.

Entered for the Court

Mary Beck Briscoe

Circuit Judge