* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. SeeFed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T herefore, 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 w as sentenced to forty-six-2-

months’ imprisonment. Defendant’s counsel has file d an Anders brief (Anders v. California , 386 U.S. 738, 744 (1967)), and defendant has file d 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 re entry after he was deported following an aggravated felony conviction (a Utah s tate 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 adjustmentfor acceptance of responsibility. U.S.S.G. § 3E1.1. Based on defend ant’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 sentenc e at the bottom of the range. In his pro se letter, defendant contends the distri ct court considered two prior crimes which were committed by his brother. The record reveals defendant acknowledged at sentencing that neither of the crim es 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 sente nce for a felony drug conviction to which he pleaded guilty when he was i n fact innocent. A sentencing court cannot consider a collateral attack on a prio r 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 r epresented by counsel when he entered a plea of guilty to the crime. The distric t 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