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                                        FILED
                           United States Court of Appeals
                                    Tenth Circuit
  
                                     OCT 16 2001
  
                                   PATRICK FISHER
                                        Clerk
										
			UNITED STATES COURT OF APPEALS
         
                               FOR THE TENTH CIRCUIT
         
         
         
         UNITED STATES OF AMERICA,        
                                          
                   Plaintiff-Appellee,              
                                          
         v.                                         No.  00-4169
                                               (D.C. No. 00-CR-239-S)
         FLAVIO ENRIQUE  TREVIZO-MIRAMONTES,            (D. Utah)
                                          
                  Defendant-Appellant.             
                                          
         
         ORDER AND JUDGMENT(1)
         
         
         Before EBEL, KELLY, and LUCERO, Circuit Judges.
         

              After examining the briefs and appellate record, this panel has determined 

         unanimously to grant the parties' request for a decision on the briefs without oral 

         argument.  See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G).  The case is therefore 

         ordered submitted without oral argument.

              Defendant Flavio Enrique Trevizo-Miramontes appeals his conviction and 

         sentence for illegally reentering the United States after deportation, in violation
         

         (1)     This order and judgment is not binding precedent, except under the 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.
         --------------------------------------------------------------------------------
         of 8 U.S.C. . 1326.  For the reasons stated below, we grant counsel's motion to 

         withdraw and dismiss the appeal.

              Defendant, a citizen of Mexico, has lived in this country for approximately 

         twenty years.  In 1996, he was convicted in Florida of selling a small amount of 

         cocaine and, after serving his sentence, was deported.  Defendant was again 

         arrested and convicted of a controlled substance offense in 1998, and was 

         deported in November 1998. 

              In May of 2000, defendant was discovered in the United States and was 

         charged with illegal reentry.  He entered a plea of guilty pursuant to an agreement 

         in which the government agreed to recommend that defendant be given credit for 

         accepting responsibility and that he be sentenced at the low end of the sentencing 

         guidelines.  In the presentence report (PSR), the United States Probation Office 

         recommended a guideline range of forty-six to fifty-seven months, based on 

         a sixteen-level enhancement for reentry after conviction of an aggravated felony 

         pursuant to United States Sentencing Guideline . 2L1.2(b)(1)(A); a three-point 

         reduction for acceptance of responsibility pursuant to United States Sentencing 

         Guideline . 3E1.1, and a criminal history category of III.  Defendant did not 

         object to the calculations in the PSR.  The district court accepted the PSR's 

         recommendations and sentenced defendant to forty-six months' incarceration, 

         which was the low end of the applicable guidelines range.

--------------------------------------------------------------------------------
              On appeal, defendant's counsel has filed a brief pursuant to Anders v. 

         California, 386 U.S. 738 (1967), and has moved for leave to withdraw.  Anders 

         holds that if counsel finds an appeal "to be wholly frivolous, after a conscientious 

         examination of it," he or she "should so advise the court and request permission 

         to withdraw."  Id. at 744.  Counsel must also submit to the court a brief 

         addressing anything in the record that arguably supports the appeal.  The brief 

         is served upon the defendant, who may "raise any points that he chooses."  Id. 

         We must then fully examine the proceedings to decide whether the appeal is 

         frivolous, and if so, we may grant counsel's request to withdraw and dismiss 

         the appeal.  Id.  Here, defendant was provided with a copy of counsel's brief but 

         has not responded. 

              In her Anders brief, counsel related that defendant wished to raise the 

         following issues:  (1) whether his sentence violated the proscription against 

         double jeopardy; (2) whether his sentence was cruel and unusual, thus violating 

         the Eighth Amendment; (3) whether . 1326 punished him for his status as an 

         alien; (4) whether he should have been granted a downward departure based on 

         his long residence in this country and the minor nature of his prior felonies; and 

         (5) whether counsel was ineffective.  We agree that these issues are frivolous.

              Defendant was not placed twice in jeopardy because the increase in his 

         sentence based on his prior conviction was simply a sentence enhancement for
         --------------------------------------------------------------------------------
         the current offense, and not an additional punishment for the previous offense. 

         See Witte v. United States, 515 U.S. 389, 400 (1995) (explaining why recidivism 

         statutes do not violate double jeopardy).  His sentence did not violate the Eighth 

         Amendment because it was well within the statutory and guideline limits.  United 

         States v. Youngpeter, 986 F.2d 349, 355 (10th Cir. 1993) (holding sentence not 

         regarded as cruel and unusual when within statutory and guideline limits).

              Defendant's guilty plea waived his due process argument that . 1326 

         punished him based on his alien status.  United States v. Wright, 43 F.3d 491, 494 

         (10th Cir. 1994) (holding guilty plea waives all non-jurisdictional defenses, 

         including due process claims).  In any event, the statute punished his act of 

         reentering the country, not his alienage.  See United States v. Cupa-Guillen, 

         34 F.3d 860, 863 (9th Cir. 1994).  We lack jurisdiction to review the district 

         court's failure to depart downward in sentencing absent a claim that the court 

         misunderstood its authority to depart.  United States v. Coddington, 118 F.3d 

         1439, 1441 (10th Cir. 1997).  Finally, defendant's claims of ineffective assistance 

         of counsel should be brought in a collateral proceeding rather than on direct 

         appeal.  United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995). 

--------------------------------------------------------------------------------
              Accordingly, the direct criminal appeal is DISMISSED as frivolous.  The 

         motion by the defendant's counsel to withdraw is GRANTED.  The mandate will 

         issue forthwith.

         
                                                 Entered for the Court
                  
         
                                                 David M. Ebel
                                                 Circuit Judge




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