                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                         DEC 4 2002
                     UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT                    PATRICK FISHER
                                                                             Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                    No. 01-1500
                                                  D.C. No. 01-CR-109-D
 HUMBERTO ALONSO ORTIZ-                               (D. Colorado)
 ORONA, also known as Mario Lujan-
 Tena, Raul Molina-Morales, Casmire
 Cordoba-Baragan, Humberto Barbajal-
 Barragan, Joel Mora-Estrada, Alonso
 Ruiz-Orona,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before EBEL, LUCERO, and O’BRIEN, 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        This order and judgment is not binding precedent except under the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.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Defendant Humberto Ortiz-Orona, a non-citizen who had previously been

deported afer being convicted of a felony drug trafficking offense, pled guilty to

illegally reentering the United States in violation of 8 U.S.C. § 1326(a). He was

sentenced to forty-one months of imprisonment and three years of supervised

release. He now appeals the length of his sentence.

      Mr. Ortiz-Orona’s Presentence Report indicated that pursuant to United

States Sentencing Guidelines (“U.S.S.G.”) § 2L1.2(b)(1)(A) (2000), he would be

subject to a sixteen-point increase to his base offense level of eight because he

was previously deported after a conviction for a qualifying felony. Prior to

sentencing, counsel for Mr. Ortiz-Orona objected to the Presentence Report. 1

Counsel emphasized that Mr. Ortiz-Orona served only five months in prison for

his prior drug trafficking offense, even though a sentence of eighteen months was

imposed. From that fact, counsel argued that under Application Note 5 in the

commentary to U.S.S.G. § 2L1.2 (2000), Mr. Ortiz-Orona should receive a

downward departure from the sixteen-point increase to his base offense level. 2

      1
          Mr. Ortiz-Orona’s counsel before the district court is also his counsel on
appeal.
      2
          Application Note 5 to U.S.S.G. § 2L1.2 (2000) states in pertinent part that:

               If [Section 2L1.2] subsection (b)(1)(A) applies, and (A) the

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      At the October 17, 2001, sentencing the district court reasoned that a

downward departure under Application Note 5 to U.S.S.G. § 2L1.2 (2000) was

not available to Mr. Ortiz-Orona because a sentence of eighteen months

imprisonment had been imposed for his prior drug trafficking conviction. The

district court noted that under the clear precedent of this circuit, the phrase “term

of imprisonment” in Application Note 5 to U.S.S.G. § 2L1.2 (2000) means the

actual period of possible imprisonment, rather than the period actually served.

Further, the district court found that a downward departure under U.S.S.G. §

5K2.0 (2000) 3 was not warranted because this case did not fall outside the

heartland of cases covered by the guidelines. For reasons not pertinent to this



             defendant has previously been convicted of only one felony offense;
             (B) such offense was not a crime of violence or firearms offense; and
             (C) the term of imprisonment imposed for such offense did not exceed
             one year, a downward departure may be warranted based on the
             seriousness of the aggravated felony.

U.S.S.G. § 2L1.2 cmt. n.5 (2000) (emphasis added).

      3
        The pertinent provisions of Section 5K2.0 allow a sentencing court to
impose a sentence outside the applicable guideline range if the court finds that, in
light of unusual circumstances, the weight attached to a factor under the
guidelines is excessive, even though the reason for departure is taken into
consideration in determining the guideline range. It further provides that where a
factor is not ordinarily relevant in determining if the sentence should be outside
the applicable guideline range, the factor may be relevant to such a determination
if the factor “is present to an unusual degree and distinguishes the case from the
‘heartland’ cases covered by the guidelines.” U.S.S.G. § 5K2.0 (2000).


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appeal, the district court did reduce Mr. Ortiz-Orona’s Criminal History Category

from III to II, yielding a guideline sentencing range of forty-one to fifty-one

months. He was sentenced to forty-one months.

      On appeal, counsel for Mr. Ortiz-Orona filed an Anders brief and moved to

withdraw as counsel. Anders v. California, 386 U.S. 738 (1967), permits counsel

who considers an appeal to be wholly frivolous to advise the court of that fact,

request permission to withdraw from the case, and submit a brief referring to

portions of the record that arguably support the appeal. Id. at 744. In his Anders

brief, counsel for Mr. Ortiz-Orona makes record reference to the argument

presented to the district court but candidly admits the propriety of the court’s

contrary ruling. Acting pro se, Mr. Ortiz-Orona filed a belated response

essentially alleging ineffective assistance of counsel. Review of this allegation

requires development of a factual record by the district court, and therefore it

should be brought in a collateral proceeding and not in this direct appeal. United

States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995). Therefore, we decline

to address this argument. In his response, Mr. Ortiz-Orona also requested the

appointment of new counsel. He offers no just argument for that request nor any

reasonable excuse for its untimeliness. His request is denied.

      After fully examining the proceedings as required by Anders, we have

determined that all issues on appeal are frivolous. However, we will address the


                                          -4-
issues raised in the district court.

       First, our precedent clearly prevents the downward departure sought by Mr.

Ortiz-Orona. In United States v. Chavez-Valenzuela, 170 F.3d 1038 (10th Cir.

1999), we held that the phrase “term of imprisonment” in Application Note 5 to

U.S.S.G. § 2L1.2 (2000) referred to the sentence that was imposed by the court

and not the time actually served. Id. at 1039-40. Even the suspension of an

imposed sentence is irrelevant in considering eligibility for a downward departure

under Application Note 5. United States v. Marquez-Gallegos, 217 F.3d 1267,

1269-70 (10th Cir.), cert. denied, 531 U.S. 905 (2000).

       Second, Mr. Ortiz-Orona was not entitled to a downward departure under

U.S.S.G. § 5K2.0 (2000). He did not qualify for a downward departure under

Application Note 5 to U.S.S.G. § 2L1.2 (2000) because his case did not fall

outside the heartland. In promulgating Application Note 5, the Sentencing

Commission implicitly defined the heartland of such cases to be all those not

falling within its exceptions. Marquez-Gallegos, 217 F.3d at 1270-71.

       We note that U.S.S.G. § 2L1.2 was amended in November 2001 by

removing the previous version of Application Note 5, and incorporating its

provisions directly into Section 2L1.2. 4 However, the 2001 amendments do not



       The 2001 amendments altered Section 2L1.2(b)(1)(A) to specifically list
       4

offenses that increase the offense level by sixteen points, such as drug trafficking,
when the sentence imposed exceeds thirteen months.

                                         -5-
apply to Mr. Ortiz-Orona, who was sentenced on October 17, 2001, because the

sentencing court “shall use the Guidelines Manual in effect on the date that the

defendant is sentenced.” U.S.S.G. § 1B1.11(a) (2002); see also United States v.

Alvarez-Pineda, 258 F.3d 1230, 1235-36 (10th Cir. 2001). Even if the

amendments did apply, Mr. Ortiz-Orona would still be subject to a sixteen-point

increase to his base offense level with no downward departure. U.S.S.G. §

2L1.2(b)(1)(A)(i) (2001). The amended U.S.S.G. § 2L1.2 retains a base offense

level of eight, and provides a sixteen-point increase if the defendant was

previously deported after being convicted of a felony that is a drug trafficking

offense, where the sentence imposed exceeds thirteen months. U.S.S.G. §

2L1.2(a), (b)(1)(A)(i) (2001).

      For all of the aforementioned reasons, counsel’s motion to withdraw is

granted, Mr. Ortiz-Orona’s motion for appointment of new counsel is denied, and

the judgment and sentence of the district court are AFFIRMED.

                                       Entered by the Court:

                                       TERRENCE L. O’BRIEN
                                       United States Circuit Judge




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