                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                   May 22, 2012
                                   TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                   Clerk of Court

 UNITED STATES OF AMERICA ,

          Plaintiff-Appellee,
 v.                                                     No. 11-1391
                                             (D.C. No. 1:11-CR-00047-WYD-1)
 LUIS ABRAHAM IBARRA-                                    (D. Colo.)
 VERGARA ,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.


      After examining counsel’s Anders brief and the 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); 10th Cir. R. 34.1(G).

The case is therefore ordered submitted without oral argument.

      Luis Abraham Ibarra-Vergara is a native and citizen of Chile. In 1977, as a

teenager, he was allowed to enter the United States in order to apply for political

asylum. For reasons that are not clear, he did not immediately apply.



      *
              This order and judgment is not binding precedent except under the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.
        In 1983, Mr. Ibarra was convicted in state court in Colorado of first-degree

sexual assault for forcing a woman, at gunpoint, to perform oral sex on him. He

was sentenced to eight years’ imprisonment. He was released on parole in

November 1986 and applied for asylum a month later. An immigration judge in

Denver denied the application and ordered Mr. Ibarra excluded from the United

States. He was deported in February 1987. He returned to the United States

without authorization at an unknown date and has been in this country since that

time.

        After returning, Mr. Ibarra’s troubles with the law continued. Between

2001 and 2009, he pleaded guilty in state court to (1) leaving the scene of an

accident and lying to police officers; (2) driving without a license; (3)

fraudulently obtaining worker’s compensation, a felony; and (4) lying on a rental

application, also a felony. For the latter conviction, Mr. Ibarra spent less than a

year in prison before being paroled. His parole officers alerted federal

immigration authorities to his lack of citizenship. He was arrested, detained in an

immigration jail, and charged in federal district court in Colorado with a violation

of 8 U.S.C. §§ 1326(a), (b)(2) for illegal reentry into the United States after a

deportation. In April 2011, he pleaded guilty to the single-count indictment.

        A presentence investigation report (“PSR”) prepared in advance of

sentencing assigned Mr. Ibarra a criminal history category of III and an offense

level of 21, resulting in an advisory Guidelines range of 46 to 57 months. The

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magnitude of the offense level was due primarily to Mr. Ibarra’s 1983 sexual-

assault conviction, which qualified for a 16-level enhancement as a “crime of

violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2010). This created a paradox,

however. The 1983 conviction, although taken into account for offense-level

purposes, was too old to bear upon Mr. Ibarra’s criminal history because it

occurred more than fifteen years ago. See id. § 4A1.1 cmt. n.1 (2010) (“A

sentence imposed more than fifteen years prior to the defendant’s commencement

of the instant offense is not counted [for criminal-history purposes] . . . .”).

      The United States Sentencing Commission has since addressed this

anomaly, amending U.S.S.G. § 2L1.2(b)(1)(A)(ii) to provide for an enhancement

of 12, rather than 16, levels if a prior crime-of-violence conviction does not

garner criminal-history points. See U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2011); see also

id. § 2L1.2 cmt. n.1(C). The amendment became effective November 1,

2011—officially a little more than two months too late for Mr. Ibarra, who was

sentenced in August.

      Although Mr. Ibarra did not object to the PSR’s calculations, he did request

a variance, arguing that the 1983 conviction, at nearly thirty years old, was stale.

He asked that the court vary downward four levels—the difference between the

16-level enhancement he actually received and the 12-level enhancement he

would have received under the amended, though not yet effective, Guideline. A




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four-level reduction would place his offense level at 17 and his advisory

Guidelines range at 30 to 37 months. He requested a sentence of 30 months.

      The government objected to the variance, but the district court granted it.

To deny Mr. Ibarra the benefit of a Guidelines amendment two months before it

became effective would be “inappropriate,” the court found. R., Vol. 2, at 34

(Sentencing Tr., Aug. 17, 2011). It nonetheless rejected Mr. Ibarra’s request for a

30-month sentence and fixed his sentence at 37 months, the top of the new

(variance) Guidelines range, because it “view[ed] the defendant’s past criminal

record as serious.” Id. at 35. The court considered the factors at 18 U.S.C.

§ 3553(a) in imposing a final sentence. Id. at 37 (considering “the nature and

circumstance of the offense and the history and characteristics of [the]

defendant”).

      Following timely notice of appeal, counsel for Mr. Ibarra filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), explaining why counsel

believes there to be no reasonable grounds for appeal. We requested Mr. Ibarra to

respond to counsel’s Anders brief by March 19, 2012. He failed to meet that

deadline, and the government has decided not to file a response.

      When defense counsel files an Anders brief, our obligation is to conduct “a

full examination of all the proceedings, to decide whether the case is wholly

frivolous.” Anders, 386 U.S. at 744. We have done so, and we agree with

defense counsel that Mr. Ibarra has no non-frivolous grounds for appeal. We see

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no jurisdictional defect in his conviction and have no reason to question the

voluntariness of his plea. As for sentencing, the only contested issue was one on

which Mr. Ibarra ultimately prevailed: a requested downward variance in light of

an upcoming amendment to the Sentencing Guidelines. We detect no error in the

way the district court calculated Mr. Ibarra’s sentence. Furthermore, because 37

months is below the Guidelines range of 46 to 57 months, the sentence is

presumptively reasonable, and we see no basis on which Mr. Ibarra could rebut

that presumption. See United States v. Damato, 672 F.3d 832, 848 (10th Cir.

2012).

         Counsel tells us that Mr. Ibarra wishes to challenge the effectiveness of his

trial attorney, but counsel is correct that we prefer to hear such claims in post-

conviction proceedings (as to federal prisoners) under 28 U.S.C. § 2255, rather

than on direct appeal. See United States v. Trestyn, 646 F.3d 732, 741 (10th Cir.

2011) (“[I]n most cases a motion brought under § 2255 is preferable to direct

appeal for deciding claims of ineffective assistance.” (quoting Massaro v. United

States, 538 U.S. 500, 504–05 (2003)) (internal quotation marks omitted)).

         Having reviewed the record thoroughly, we are persuaded that Mr. Ibarra

can raise no meritorious issue on appeal. We therefore AFFIRM Mr. Ibarra’s




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conviction and sentence and GRANT counsel’s motion to withdraw.




                                   ENTERED FOR THE COURT



                                   Jerome A. Holmes
                                   Circuit Judge




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