                                                                                  FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                         October 10, 2008
                      UNITED STATES COURT OF APPEALS                   Elisabeth A. Shumaker
                                                                           Clerk of Court
                                FOR THE TENTH CIRCUIT


 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,

 v.                                                         No. 08-2032
                                                     (D.C. No. 07-CR-01250-JB)
 FRANCISCO MOLINA-PEREYRA,                                    (D.N.M.)

        Defendant - Appellant.


                                ORDER AND JUDGMENT*


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.


      Defendant-Appellant Francisco Molina-Pereyra pleaded guilty to one count of

reentering the United States after being previously deported following a conviction for an

aggravated felony, in violation of 8 U.S.C. § 1326(a) and 8 U.S.C. § 1326(b)(2). The

district court sentenced him to forty-six months’ imprisonment. Mr. Molina-Pereyra’s

counsel filed a motion to withdraw and an appellate brief pursuant to Anders v.

California, 386 U.S. 738 (1967). Based on our independent review of the record, id. at



      * This Order and Judgment is not binding precedent, except under the doctrines of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. After
examining the briefs and the appellate record, this three-judge panel has determined
unanimously that oral argument would not be of material assistance in the determination
of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
744, we conclude that Mr. Molina-Pereyra’s appeal is meritless. Exercising jurisdiction

pursuant to 28 U.S.C. § 1291, we grant counsel’s motion to withdraw and affirm the

conviction and sentence.

                                   I. BACKGROUND

       Because the parties are familiar with the facts, we need not recite them in detail.

Mr. Molina-Pereyra was arrested in New Mexico after illegally crossing the United States

border with Mexico. He was charged by information with unlawful reentry by a deported

alien previously convicted of an aggravated felony. He entered into a plea agreement and

pleaded guilty to this offense. Under his plea agreement, Mr. Molina-Pereyra would

receive a three-level reduction for acceptance of responsibility and the government would

recommend a sentence at the lower end of the Sentencing Guidelines range. Mr. Molina-

Pereyra waived his right to appeal any sentence within the applicable Guideline range and

imposed in conformity with the plea agreement.

       Mr. Molina-Pereyra’s Presentence Report (hereinafter “PSR”) assigned to him a

total offense level of twenty-one. Based on Mr. Molina-Pereyra’s prior criminal history,

the PSR placed him in a criminal history category III. The resulting Guidelines range was

forty-six to fifty-seven months’ imprisonment.

       Mr. Molina-Pereyra did not object to the PSR. He did ask, however, for a

variance, relying on several 18 U.S.C. § 3553(a) factors and stressing in particular the

allegedly “minor” nature of his prior aggravated felony, which he said involved the theft

of several used tires. R., Vol. I, Doc. 23, at 13 (Sentencing Memorandum, dated Dec. 11,

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2007); see R., Vol. III, Tr. at 6-7, 11 (Tr. of Sentencing Hearing, dated Dec. 19, 2007).

The trial court found no cause for a variance and sentenced Mr. Molina-Pereyra to forty-

six months, the bottom of the Guidelines range.

       After Mr. Molina-Pereyra timely filed his notice of appeal, his counsel filed an

Anders brief and a motion to withdraw. Under Anders, a court-appointed defense counsel

who believes that an appeal would be “wholly frivolous” may withdraw only upon

submission of a brief to the client and the court indicating “anything in the record that

might arguably support an appeal.” Anders, 386 U.S. at 744.

       Mr. Molina-Pereyra’s counsel indicates that Mr. Molina-Pereyra insisted that an

appeal be filed because he believed the sentence imposed was too harsh. Mr. Molina-

Pereyra’s counsel provided Mr. Molina-Pereyra with notice of the Anders brief and the

request to withdraw. Mr. Molina-Pereyra subsequently filed a supplemental brief,

objecting to the length of his sentence and claiming ineffective assistance of counsel,

stating that his counsel did not keep him informed of the proceedings and arrived late for

the sentencing. The government declined to file an answer brief, noting that it “ha[d]

reviewed appellant’s opening brief and the record in this case and discern[ed] no

meritorious basis for the appeal.” 1 No. 08-2032, Doc. No. 01001723672, at 1 (Notice of


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              Although the district court imposed a sentence within the applicable
Guidelines range—indeed, at the bottom of the range—given the government’s response
to Mr. Molina-Pereyra’s appeal, we conclude that his appeal is not precluded by his plea
agreement appeal waiver. An appeal waiver is not self-executing. The government must
affirmatively seek to enforce the waiver. But “the government is accorded flexibility in
                                                                             (continued...)

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Intent Not to File Answer Brief, dated June 24, 2008).

                                    II. DISCUSSION

Sentencing

       We review a district court’s sentencing determination for an abuse of discretion,

asking whether the sentence is reasonable in view of the factors identified in 18 U.S.C. §

3553(a). See United States v. Gall, 128 S. Ct. 586, 594 (2007) (“Our explanation of

‘reasonableness’ review in the Booker opinion made it pellucidly clear that the familiar

abuse-of-discretion standard of review now applies to appellate review of sentencing

decisions.”). Reasonableness has both procedural and substantive dimensions. See


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         (...continued)
the form of its request for enforcement.” United States v. Calderon, 428 F.3d 928, 930
(10th Cir. 2005). When a defendant who has waived his right to appeal nevertheless files
a notice of appeal, the government may seek to dismiss the appeal by filing a “Motion for
Enforcement of the Plea Agreement.” United States v. Hahn, 359 F.3d 1315, 1328 (10th
Cir. 2004); see also 10th Cir. R. 27.2(A)(1)(d). Alternatively, the government can raise
the waiver in its answer brief. United States v. Clayton, 416 F.3d 1236, 1239 (10th Cir.
2005); see also 10th Cir. R. 27.2(A)(3) (“Failure to file a timely motion to enforce a plea
agreement does not preclude a party from raising the issue in a merits brief.”). The
government also can enforce the waiver if it “explicitly cites an appeal waiver in a letter
to the Court in response to an Anders brief.” United States v. Contreras-Ramos, 457 F.3d
1144, 1145 (10th Cir. 2006) (emphasis added). However, when the government “utterly
neglects to invoke the waiver,” it has forfeited the opportunity to enforce it. Calderon,
428 F.3d at 930-31. This principle applies even when the defendant’s counsel concedes
in an Anders brief that the appeal is barred. Id. at 931 (“The government cannot rely on
defense counsel’s raising the argument in an Anders brief as a substitute for fulfilling its
own obligation to seek enforcement of the plea agreement.”). In this case, Mr. Molina-
Pereyra’s counsel filed an Anders brief in which he conceded that the appeal was
precluded by the plea agreement appeal waiver. Aplt. Br. at 7. In notifying this court of
its intent not to file an answer brief, however, the government never mentioned the appeal
waiver. Therefore, we find that the government has forfeited its opportunity to enforce
the waiver.

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United States v. Hildreth, 485 F.3d 1120, 1127 (10th Cir. 2007).

       Generally speaking, a sentence that reflects a proper Guidelines calculation and

application of the § 3553(a) factors is procedurally reasonable. See United States v.

Geiner, 498 F.3d 1104, 1107 (10th Cir. 2007). “A sentence is substantively reasonable

when it ‘reflects the gravity of the crime and the § 3553(a) factors as applied to the

case.’” Id. (quoting United States v. Atencio, 476 F.3d 1099, 1102 (10th Cir. 2007),

overruled in part on other grounds by Irizarry v. United States, 128 S. Ct. 2198, 2201 n.1,

2203-04 (2008)). A sentence falling within a properly-calculated Guideline range is

presumed to be substantively reasonable on appeal. Id.

       Mr. Molina-Pereyra claims only that his sentence is too long – a challenge to its

substantive reasonableness. He makes no attempt to overcome the appellate presumption

of reasonableness of his within-Guidelines sentence. Based upon our independent review

of the record, we are satisfied that his forty-six month, bottom-of-the-range sentence is

substantively reasonable.

       The sentence reflects both the gravity of Mr. Molina-Pereyra’s crime and the §

3553(a) factors. His reentry after being previously deported following a conviction for an

aggravated felony is a serious crime. See United States v. Valenzuela-Puentes, 479 F.3d

1220, 1226 (10th Cir. 2007) (citing United States v. Martinez-Espinoza, 299 F.3d 414,

418 (5th Cir. 2002)). His PSR also depicts an extensive criminal background. After

reviewing Mr. Molina-Pereyra’s motion for a variance and the evidence, the district court

saw no reason to deviate from the PSR’s recommended Guidelines range. Nothing in the

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record suggests that the district court abused its discretion in determining the length of

Mr. Molina-Pereyra’s sentence.

Ineffective Assistance of Counsel

       “Ineffective assistance of counsel claims should be brought in collateral

proceedings, not on direct appeal. Such claims brought on direct appeal are

presumptively dismissible, and virtually all will be dismissed.” United States v. Samuels,

493 F.3d 1187, 1193 (10th Cir. 2007) (quoting United States v. Galloway, 56 F.3d 1239,

1240 (10th Cir.1995) (en banc)). This rule assures that we review ineffective assistance

of counsel claims only when the factual record is fully developed. United States v.

Brooks, 438 F.3d 1231, 1242 (10th Cir. 2006). Although we may undertake a review in

the rare case where the record is sufficiently developed, see Samuels, 493 F.3d at 1193,

this is not one of those rare cases. Moreover, even assuming the record was adequately

developed, we would be reluctant to undertake review because “[a]n opinion by the

district court is a valuable aid to appellate review for many reasons, not the least of which

is that in most cases the district court is familiar with the proceedings and has observed

counsel’s performance, in context, firsthand.” Brooks, 438 F.3d at 1242 (internal

quotation marks omitted) (quoting Galloway, 56 F.3d at 1240).

                                    III. CONCLUSION

       Our review of the record reveals no facts or circumstances that would render Mr.

Molina-Pereyra’s sentence substantively unreasonable in light of the § 3553(a) factors.

Mr. Molina-Pereyra’s claims of ineffective assistance of counsel are premature. Counsel’s

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motion to withdraw is GRANTED and the conviction and sentence are AFFIRMED.



                                    Entered for the Court

                                    Jerome A. Holmes
                                    Circuit Judge




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