                                                                                    FILED
                                                                        United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                            Tenth Circuit

                             FOR THE TENTH CIRCUIT                               May 29, 2015
                         _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 14-6184
                                                     (D.C. No. 5:13-CR-00138-F-6)
ERLINDA RAMIREZ,                                             (W.D. Okla.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, TYMKOVICH, and MORITZ, Circuit Judges.
                 _________________________________

       Erlinda Ramirez appeals her convictions for (1) conspiracy to distribute, and

conspiracy to possess with intent to distribute, controlled substances; (2) conspiracy to

launder money; and (3) aiding and abetting money laundering. Defense counsel filed an

Anders1 brief and moved to withdraw as counsel. Ramirez declined to file a pro se



       *
         After examining defense counsel’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist in the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case
is therefore ordered submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
       1
        After conscientious examination of a case, an attorney who concludes an
appeal would be “wholly frivolous” may “so advise the court and request permission
to withdraw” from representation. Anders v. State of Cal., 386 U.S. 738, 744 (1967).
response, and the government also declined to file a brief. We therefore base our decision

on defense counsel’s brief and our own review of the record.2

       Erlinda Ramirez entered pleas of guilty to one count of conspiracy to distribute

marijuana, cocaine, and methamphetamine, and to possess those substances with intent to

distribute in violation of 21 U.S.C. §§ 841 and 846; one count of conspiracy to launder

money in violation of 18 U.S.C. §§ 1956(a)(1) and (h); and seven counts of aiding and

abetting money laundering in violation of 18 U.S.C. §§ 2 and 1956(a)(1)(B)(i). Based on

her two prior felony convictions for controlled substance offenses, the PSR classified

Ramirez as a career offender under U.S.S.G. § 4B1.1(b). As a result, the PSR increased

both the offense level and Ramirez’s criminal history category, yielding a Guidelines

range of 262 to 327 months in prison. Nevertheless, the district court imposed a 240-

month prison sentence.

       Defense counsel first says Ramirez might challenge the classification of two

Oklahoma drug convictions as prior convictions for purposes of treating her as a career

If the court agrees, “after a full examination of all the proceedings,” that the appeal is
wholly frivolous, it may grant the motion to withdraw and dismiss the appeal. Id.
       2
         To satisfy our obligation to review the proceedings under Anders, we found it
necessary to sua sponte supplement the record with a transcript of Ramirez’s guilty plea
hearing, which defense counsel did not designate as part of the record. See United States
v. Delacruz-Soto, 414 F.3d 1158, 1161 (10th Cir. 2005) (explaining that counsel filing an
Anders brief “generally should ensure that copies of all possibly relevant transcripts are
included in the record on appeal”); see also 10th Cir. R. 10.1(A)(1). Additionally, defense
counsel has failed to provide any citations to the appellate record. See Delacruz-Soto, 414
F.3d at 1160 (explaining that Anders allows an attorney withdraw after, inter alia, filing a
brief that cites “those portions of the record that arguably support the appeal”). In the
future, such failures may result in denial of defense counsel’s Anders brief and motion to
withdraw. See id. at 1161.

                                                2
offender under U.S.S.G. § 4B1.1(a). Because Ramirez did not raise this issue below, we

review for plain error. United States v. Ferrel, 603 F.3d 758, 763 (10th Cir. 2010).

       According to the PSR, Ramirez has a 2009 conviction for possessing a controlled

substance with intent to distribute in violation of Okla. Stat. Ann. Tit. 63, § 2-401 (West

2008), and a 2010 conviction for distributing a controlled substance in violation of Okla.

Stat. Ann. Tit. 63, § 2-401 (West 2009). Both convictions resulted in prison sentences

greater than one year; the convictions arose from different charging instruments; and the

sentences for the convictions were imposed on different dates. Thus, we conclude the

PSR accurately classified the convictions as prior convictions for controlled substance

offenses under U.S.S.G. § 4B1.1(a). See U.S.S.G. §§ 4B1.2(b), (c)(2); see also U.S.S.G.

§ 4A1.2. We agree with defense counsel that this claim is frivolous.

       Defense counsel says Ramirez might also complain that the district court

impermissibly “double count[ed]” her prior Oklahoma drug convictions when it classified

her as a career offender. Aplt. Br. at 5. Because Ramirez did not raise this issue below,

we again review for plain error. Ferrel, 603 F.3d at 763.

       To the extent Ramirez might argue that the district court erred in counting her

prior convictions for controlled substance offenses twice—first to increase her criminal

history category, and again to increase the offense level—the district court’s use of the

prior convictions comports with the plain language of the Guidelines. See U.S.S.G.

§ 4B1.1(b) (stating “career offender’s criminal history category in every case . . . shall be

Category VI,” and requiring district court to increase offense level for career offender to

offense level provided in § 4B1.1(b) if that offense level is “greater than the offense level

                                                 3
otherwise applicable”). To the extent Ramirez might instead suggest that the use of her

prior convictions to increase her sentence runs afoul of the Double Jeopardy Clause, the

United States Supreme Court has “consistently rejected double jeopardy challenges to

recidivism statutes.” United States v. Andrews, 447 F.3d 806, 810 (10th Cir. 2006)

(discussing Witte v. United States, 515 U.S. 389 (1995)). We conclude this claim is also

frivolous.

       Next, defense counsel says Ramirez might argue her sentence is excessive. We

interpret this argument as a challenge to the substantive reasonableness of Ramirez’s

sentence, and we review for abuse of discretion despite Ramirez’s failure to challenge the

length of her sentence as unreasonable below. See United States v. Balbin-Mesa, 643

F.3d 783, 786-87 (10th Cir. 2011) (reviewing defendant’s substantive-unreasonableness

claim for abuse of discretion); United States v. Torres-Duenas, 461 F.3d 1178, 1183

(10th Cir. 2006) (“[W]hen the claim is merely that the sentence is unreasonably long, we

do not require the defendant to object in order to preserve the issue.”). Ramirez’s

sentence of 240 months falls below the advisory Guidelines range, and is therefore

presumptively reasonable. See Balbin-Mesa, 643 F.3d at 788. We see nothing in the

record that would overcome this presumption. Thus, we find no abuse of discretion, and

we conclude the claim is frivolous. See id. at 787 (explaining district court abuses its

discretion if it renders judgment that is arbitrary, capricious, whimsical, or manifestly

unreasonable).

       Finally, defense counsel says that Ramirez might argue she would not have

entered a plea had she known ahead of time that the district court would impose a 240-

                                                 4
month prison sentence. We interpret this as an argument that defense counsel was

ineffective in failing to accurately advise Ramirez regarding the potential sentence. We

have consistently characterized ineffective-assistance-of-counsel claims raised for the

first time on direct appeal as presumptively dismissible. See, e.g., United States v.

Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995). Without passing on the merits of

Ramirez’s claim, we conclude it would be frivolous to raise the claim on direct appeal

because we would decline to consider it.

       Because Ramirez’s appeal presents only frivolous issues, we dismiss the appeal

and grant defense counsel’s motion to withdraw.


                                              Entered for the Court,


                                              Nancy L. Moritz
                                              Circuit Judge




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