Opinion
No. 07-1431.
August 22, 2008.
Robert M. Brown, Paul Farley, Office of the United States Attorney, Denver, CO, for Plaintiff-Appellee.
Moussa Bitar Florence, CO, pro se.
Edward R. Harris Office of the Federal Public Defender, Districts of Colorado and Wyoming, Denver, CO, for Defendant-Appellant.
Before HOLLOWAY, Senior Circuit Judge, McWILLIAMS, Senior Circuit Judge, and EBEL, Senior Circuit Judge.
ORDER AND JUDGMENT
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed.R.App.P. 32.1 and 10th Cir. R. 32.1.
The parties waived oral argument, and this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
In a six-count indictment filed in the United States District Court for the District of Colorado, Moussa Bitar (the defendant) was charged with various identity theft charges. Defendant was thereafter represented by the Public Defender's Office. Pursuant to a plea agreement, the defendant pled guilty to Counts 2 and 6, and the Government dismissed all remaining counts. In Count 2, the defendant was charged with unlawfully using a photocopy of documents purporting to be a valid Michigan Drivers License and a Texas birth certificate, both in the name of one Sergo Armado Soto, in an attempt to secure a passport in violation of 18 U.S.C. § 1028A. In Count 6, the defendant was charged with falsely using a Social Security account number which was not his when applying for employment with the Professional Bureau of Collections, Inc., in violation of 42 U.S.C. § 408(a)(7)(B).
After a pre-sentence report was filed, the district court sentenced defendant to two years imprisonment on Count 2 and a sentence of "time served" on Count 6. The defendant, through counsel, thereafter filed a timely notice of appeal.
As stated, at sentencing the district court sentenced defendant to "time served" on Count 6, which meant that the defendant was not sentenced to imprisonment on Count 6 for any additional time beyond that already served by him. However, as to Count 2, the district court sentenced defendant to imprisonment for two years pursuant to 18 U.S.C. § 1028A(a)(1), which provides that one who uses a means of identification without lawful authority shall be sentenced to a term of imprisonment for two years.
On appeal, the Public Defenders Office has filed a so-called Anders Brief. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In that brief counsel concedes that the district court's sentence of imprisonment for two years on Count 2, which was statutorily mandated, was proper, as was his sentence of "time served" on Count 6. Accordingly, counsel asks that we dismiss this appeal on the grounds that there is, under the circumstances described, no non-frivolous issue which could be used to challenge the sentence imposed on either Count 2 or 6. Our study of the record, as required by Anders, leads us to conclude that there is no non-frivolous issue which could be raised by the defendant as concerns his sentence.
Counsel states that the defendant did not qualify under 18 U.S.C. § 3553(e) for a sentence below the statutory minimum nor did the government file a motion for such.
Therefore, the appeal is dismissed and counsel's request to withdraw is granted.