F IL E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    U N IT E D ST A T E S C O U R T O F A PP E A L S
                                                                       September 14, 2006
                                 T E N T H C IR C U IT
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court

 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                       No. 06-1085
          v.                                              (D. Colorado)
 FELIPE RODRIGUEZ-ROJAS aka                         (D.C. No. 05-CR-272-M K)
 Angel Lopez-Ruiz aka Felipe Rojas-
 Guzman aka Pitufo,

               Defendant - Appellant.



                            O R D E R A N D JU D G M E N T *


Before T A C H A , A N D ER SO N , and B R O R B Y , Circuit Judges.




      After examining the briefs and appellate record, this panel has determ ined

unanim ously that oral argum ent would not m aterially assist in the determ ination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered subm itted without oral argum ent.

      Defendant-appellant Felipe Rodriguez-Rojas, a/k/a Angel Lopez-Ruiz, pled

guilty to one count of conspiracy to distribute one kilogram or m ore of heroin, in


      *
       This order and judgment is not binding precedent, except under the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.
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846. He was sentenced to 90

m onths’ im prisonm ent, followed by five years of supervised release, and was

directed to pay a $100 special assessm ent fee. Rodriguez-Rojas filed a timely

appeal.

      Rodriguez-Rojas’s appointed counsel, John Sullivan, has filed an Anders

brief and moved to withdraw as counsel. See Anders v. California, 

(1967). Rodriguez-Rojas subm itted a letter, which we have treated as his

response to his counsel’s Anders brief. In his letter, Rodriguez-Rojas indicated

that he “need[ed] nothing from m [y] case, please dism iss anything from m y

appeal.” 7/4/06 letter. The governm ent has declined to file a brief. W e therefore

base our conclusion on counsel’s brief and our own independent review of the

record. For the reasons set forth below, we agree with M r. Sullivan that the

record in this case provides no nonfrivolous basis for an appeal, and we therefore

grant his m otion to withdraw and we dism iss this appeal.




                                 BACKGROUND

      In early August 2004, a multi-jurisdictional investigation revealed that

Isaac Cabello-Ibarra, a co-defendant of Rodriguez-Rojas, was providing heroin to

num erous custom ers in the Denver m etropolitan area. W iretapped conversations

from various telephones used by Cabello-Ibarra and others demonstrated that

Rodriguez-Rojas was Cabello-Ibarra’s right hand man in the heroin distribution

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organization. Rodriguez-Rojas assisted in distributing heroin to custom ers and in

transporting heroin, as well as helping to unload shipm ents of heroin from

M exico.

      In M ay 2005, law enforcement agents intercepted wiretapped conversations

indicating that Cabello-Ibarra was planning to have a load of heroin shipped from

M exico to Denver. Conversations between Cabello-Ibarra and Rodriguez-Rojas

revealed that co-defendants Jose Luis Yanez-M artinez and Claudia Raquel

Ezparza-Ibarra were going to transport the load to Rodriguez-Rojas and that the

heroin would arrive som etim e after M ay 16, 2005. The heroin would be delivered

to Rodriguez-Rojas’s residence at 749 Niagara Street in Denver.

      In the evening of M ay 19, 2005, intercepted conversations between

Rodriguez-Rojas and Yanez-M artinez revealed that Yanez-M artinez and Ezparza-

Ibarra had safely crossed the border and entered the United States with the load of

heroin. Yanez-M artinez told Rodrgiuez-Rojas that he would be seeing Rodriguez-

Rojas shortly. In the early m orning hours of M ay 20, officers conducting

surveillance outside the Niagara Street residence observed a pick-up trick driven

by Yanez-M artinez and Ezparza-Ibarra arrive at Rodriguez-Rojas’s Niagara Street

hom e. Rodriguez-Rojas’s intercepted conversations with his wife in M exico

indicated that the heroin had safely arrived in the truck.

      Later that m orning, Rodriguez-Rojas was arrested as he left the house. A

search of the pick-up truck revealed four pounds of heroin hidden inside an oil

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pan in the truck’s engine. Tests revealed the seized heroin had a gross weight of

1,761 gram s. As indicated, Rodriguez-Rojas pled guilty and proceeded to

sentencing.

      In preparation for sentencing, the United States Probation Office prepared a

presentence report (“PSR”) w hich recom m ended a sentence under the advisory

United States Sentencing Com m ission, Guidelines M anual (“USSG ”) (2004). The

PSR calculated a base offense level of thirty-two, which was then raised three

levels because Rodriguez-Rojas was a manager or supervisor of the conspiracy,

see USSG §3B1.1(b), and then was reduced three levels for acceptance of

responsibility. See USSG §3E1.1(a) and (b). W ith a total adjusted offense level

of thirty-two, and a crim inal history category III, the advisory Guideline sentence

was 151 to 188 m onths.

      After finding that Rodriguez-Rojas’s criminal history category of III

overrepresented the severity of his crim inal history, the court departed down to a

crim inal history category of II. This yielded an advisory Guideline sentencing

range of 135 to 168 m onths. The governm ent then filed a m otion to depart

downward in sentencing Rodriguez-Rojas, based upon his substantial assistance to

the governm ent. See USSG §5K1.1; 18 U.S.C. § 3553(e). The court accordingly

exercised its discretion and sentenced Rodriguez-Rojas to ninety m onths’

im prisonm ent, a sentence below both the advisory Guideline range and the

statutory m inim um .

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                                  D ISC U SSIO N

      Under Anders, “counsel [m ay] request perm ission to withdraw [from an

appeal] where counsel conscientiously examines a case and determ ines that any

appeal would be wholly frivolous.” United States v. Calderon, 

, 930

(10th Cir. 2005) (citing 

). This process requires counsel

to

      subm it a brief to the client and the appellate court indicating any
      potential appealable issues based on the record. The client m ay then
      choose to subm it argum ents to the court. The [c]ourt m ust then
      conduct a full examination of the record to determ ine whether
      defendant’s claim s are wholly frivolous. If the court concludes after
      such an examination that the appeal is frivolous, it m ay grant
      counsel’s m otion to withdraw and m ay dism iss that appeal.

Id. (citing 

). As indicated, Rodriguez-Rojas’s counsel has

filed his Anders brief, and Rodriguez-Rojas’s response indicates a desire to have

this appeal dism issed.

      W e agree with counsel that there is no nonfrivolous issue related to

Rodriguez-Rojas’s guilty plea or sentence. At sentencing the district court

acknowledged that the Guidelines w ere advisory only, and the court carefully

went through all the relevant sentencing factors contained in 18 U.S.C. § 3553(a).

After granting the governm ent’s m otion for a considerable departure downward

below the advisory Guideline range and below the statutory m inim um , because of

Rodriguez-Rojas’s substantial assistance to the governm ent, the court exercised




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its discretion and sentenced Rodriguez-Rojas to ninety m onths. That is a

reasoned and reasonable sentence given the facts of this case.




                                 C O N C L U SIO N

      For the foregoing reasons, counsel’s m otion to withdraw is GRANTED and

this appeal is D ISM ISSED .

                                              ENTERED FOR THE COURT


                                              Stephen H. Anderson
                                              Circuit Judge




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