                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         JUL 18 2003
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 02-1522
          v.                                           (D. Colorado)
 SERGIO ORTEGA-GUZMAN,                            (D.C. No. 02-CR-134-N)

               Defendant-Appellant.




                           ORDER AND JUDGMENT *


Before EBEL, HENRY, and HARTZ, 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)(c); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Sergio Ortega-Guzman pleaded guilty to unlawfully reentering the United

States after deportation for an aggravated felony in violation of 8 U.S.C. §§



      *
        This order and judgment is not binding precedent, except under the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.
1326(a) and (b)(2). He appeals the district court's denial of his motion to dismiss

the indictment and raises an issue regarding his sentence. Counsel appointed to

represent defendant on appeal filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967). We affirm the district court’s denial of Mr. Ortega-Guzman’s

motion to dismiss the indictment and we affirm the conviction.



                                 I. BACKGROUND

      Mr. Ortega-Guzman, a Mexican citizen, was deported by the United States

in August 2001. He had previously been convicted of an aggravated felony in

Colorado state court. He subsequently returned to the United States without

lawful permission, and, in March of 2002, he was arrested in Weld County,

Colorado, where state authorities charged him with driving without a license and

without valid insurance. Convicted of both charges, he spent ten days in jail,

after which the Immigration and Naturalization Service took him into custody.

      The federal government indicted him for violating 8 U.S.C. § 1326(a) and

(b)(2), charging that he illegally re-entered the United States after deportation and

that he did so after being convicted of an aggravated felony. Mr. Ortega-Guzman

moved to dismiss the indictment before trial, claiming that his original

deportation proceeding was tainted by a due process violation. The district court

denied the motion.


                                         -2-
      After the district court rejected this motion to dismiss the indictment, Mr.

Ortega-Guzman pleaded guilty to the charged offense. His “Rule 11 Plea

Statement,” which the parties submitted in lieu of a formal plea agreement, was

unconditional, that is, it preserved no issues for appeal. The district court

accepted Mr. Ortega-Guzman’s guilty plea, finding that it met all the

requirements set forth in Fed. R. Crim. P. 11. After the district court rejected Mr.

Ortega-Guzman’s motion for a downward departure, Mr. Ortega-Guzman was

sentenced to 57 months’ imprisonment.



                                  II. DISCUSSION

      Mr. Ortega-Guzman has asked his counsel to appeal the district court’s

denial of his motion to dismiss the indictment and to challenge the denial of the

motion for downward departure. Anders holds that if counsel finds a case to be

wholly frivolous after conscientious examination, he should so advise the court

and request permission to withdraw. Counsel must in addition submit to both the

court and his client a brief referring to anything in the record arguably supportive

of the appeal. The client may then raise any points he chooses, and the appellate

court thereafter undertakes a complete examination of all proceedings and decides

whether the appeal is in fact frivolous. If it so finds, it may grant counsel’s

request to withdraw and dismiss the appeal. See Anders, 386 U.S. at 744.



                                          -3-
      Mr. Ortega-Guzman Defendant was notified of his right to file a pro se

brief, and he has chosen not to do so. Accordingly, we turn to an examination of

the proceedings below to determine if the appeal is wholly frivolous.

      In his Anders brief, counsel first dismisses the possibility that the district

court erred in denying the motion to dismiss the indictment. As noted above,

however, Mr. Ortega-Guzman’s plea agreement preserved no issues for appeal.

See United States v. Ryan, 894 F.2d 355, 360-61 (10th Cir. 1990) (Rule 11

requires a defendant to reserve the specific issue to be appealed). In the absence

of a conditional plea, a defendant who pleads guilty admits to all of the factual

allegations contained in the indictment and the legal consequences of those acts.

See United States v. Broce, 488 U.S. 563, 569-70 (1989); see also Tollett v.

Henderson, 411 U.S. 258, 267 (1973) (“When a criminal defendant has solemnly

admitted in open court that he is in fact guilty of the offense with which he is

charged, he may not thereafter raise independent claims relating to the deprivation

of constitutional rights that occurred prior to the entry of the guilty plea. He may

only attack the voluntary and intelligent character of the guilty plea.”). Mr.

Ortega-Guzman does not challenge the “voluntary and intelligent character” of his

guilty plea. See id., 411 U.S. at 267. Consequently, Mr. Ortega-Guzman has no

basis for collaterally attacking his deportation proceeding.




                                          -4-
      Next, Mr. Ortega-Guzman challenges the district court’s failure to grant

him a downward departure. In so doing, the court clearly recognized that it had

the discretion to depart downward but declined to do so. Because the court

acknowledged its authority to grant such a departure, we have no jurisdiction to

review its decision refusing to exercise that authority. See United States v.

Castillo, 140 F.3d 874, 889 (10th Cir. 1998).

      We have carefully examined the record to ascertain whether any other

ground exists to support a challenge to defendant's sentence. We find nothing in

the record to indicate that the sentence imposed was in violation of the law or the

result of a misapplication of the sentencing guidelines. Accordingly, we are

without jurisdiction to consider such a challenge. See United States v. Sanchez,

146 F.3d 796, 796-97 (10th Cir. 1998); 18 U.S.C. § 3742(a).



                                III. CONCLUSION

      Accordingly, we AFFIRM the judgment of the district court denying Mr.

Ortega-Guzman’s motion to dismiss the indictment, we AFFIRM the conviction,

and we GRANT counsel’s motion to withdraw.

                                                Entered for the Court,


                                                Robert H. Henry
                                                Circuit Judge



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