United States v. Mariano Loya-Ramos

972 F.2d 357, 1992 U.S. App. LEXIS 26817, 1992 WL 186527

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 31, 1992
• Docket: 91-2178
• Status: Published

Opinion

972 F.2d 357

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

UNITED STATES of America, Plaintiff-Appellee,
v.
Mariano LOYA-RAMOS, Defendant-Appellant.

No. 91-2178.

United States Court of Appeals, Tenth Circuit.

July 31, 1992.

Before SEYMOUR, STEPHEN H. ANDERSON and BALDOCK, Circuit Judges.*

ORDER AND JUDGMENT**

BALDOCK, Circuit Judge.

Defendant-appellant Mariano Loya-Ramos appeals his sentence following a judgment of conviction from a guilty plea to reentering the United States after being deported subsequent to a felony conviction. 8 U.S.C. §§ 1326(a), (b)(1). The district court sentenced Defendant to twenty-seven months imprisonment pursuant to the sentencing guidelines followed by a three-year period of supervised release. Defendant contends that the sentence was excessive and in violation of the sentencing guidelines.1

The district court accepted the presentence report's calculation of the offense level at ten, see U.S.S.G. §§ 2L1.2(a), (b)(1), which included a two-level reduction for acceptance of responsibility. Id. § 3E1.1. Defendant's criminal history category was V based on a total of 10 criminal history points. Id. § 4A1.1. In response to a direct question by the district court at sentencing, Defendant expressed no factual dispute with the presentence report. Accordingly, Defendant's guideline range was properly calculated as 21-27 months. While the district court sentenced Defendant to the maximum within the guideline range, we have no jurisdiction to review a sentence within the appropriate range. United States v. Garcia, 919 F.2d 1478, 1482 (10th Cir.1990). Therefore, the appeal is DISMISSED for lack of jurisdiction.

* 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); 10th Cir.R. 34.1.9. The cause therefore is ordered submitted without oral argument

** This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3

1 Defendant's attorney has filed an Anders brief on appeal contending that his review of the record and research of the law led him to conclude that the appeal is frivolous and without merit. See Anders v. California, 386 U.S. 738, 744 (1967). Nonetheless, we are required to fully examine the sentencing proceedings to determine whether the appeal is in fact frivolous. Id