                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 2, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 10-2104
          v.                                             (D. of N.M.)
 JUAN GOMEZ-LUGO,                                 (D.C. No. CR-09-310-BB)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges. **


      Juan Gomez-Lugo, a federal prisoner, challenges his sentence arguing the

district court committed clear error in denying a safety-valve adjustment and that

his counsel was ineffective. The district court sentenced Gomez-Lugo to ten

years’ imprisonment after he pleaded guilty to one count of possession of




      *
         This order and judgment is not binding precedent except under the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 cause is therefore ordered submitted without oral argument.
methamphetamine with intent to distribute. We have jurisdiction to hear his

appeal under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

       Gomez-Lugo’s counsel has filed an Anders brief stating the possible issues

that could be raised on appeal and explaining why the appeal ultimately has no

merit. See Anders v. California, 386 U.S. 738 (1967). After thoroughly

reviewing the record, we agree that Gomez-Lugo has no non-frivolous arguments

on appeal. 1

       We therefore GRANT the motion to withdraw and DISMISS the appeal.

                                  I. Background

       Gomez-Lugo pleaded guilty pursuant to a plea agreement. At the change-

of-plea hearing, the district court carefully explained to Gomez-Lugo and his

counsel the charges against him, including the elements of the crime. He then

admitted the facts necessary for his guilty plea, disclosing that he knowingly and

voluntarily possessed with intent to distribute 219 grams of pure

methamphetamine.

       Gomez-Lugo faced a statutory sentence of ten years to life and a mandatory

term of supervised release of at least five years following any term of

       1
         As the government argues, Gomez-Lugo may have waived his right to
appeal altogether. See R., Vol. 1 at 12 (Gomez-Lugo Plea Agreement).
According to Gomez-Lugo’s counsel, however, Gomez-Lugo did not waive
appellate rights because he did not “knowingly and voluntarily” effect his waiver,
and because the government did not affirmatively enforce the plea agreement.
Because Gomez-Lugo’s appeal presents no meritorious arguments, we need not
decide whether he waived his appellate rights.

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imprisonment. The presentence investigation report (PSR) calculated his total

offense level to be 31 and his criminal history category to be I. The guideline

range for this calculation was 108–135 months. Because the statute of conviction

requires a minimum term of 10 years, however, the guideline imprisonment range

was 120–135 months. Gomez-Lugo qualified for a three-level reduction pursuant

to United States Sentencing Guidelines (USSG) § 3E1.1 for accepting

responsibility for his offense. He was not, however, entitled to a safety-valve

adjustment under USSG § 5C1.2, because the district court found that Gomez-

Lugo had not truthfully provided the government with all information and

evidence he had concerning the offense.

                                   II. Discussion

      Gomez-Lugo has no meritorious arguments on appeal. Under Anders, 386

U.S. at 744, “if counsel finds his case to be wholly frivolous, after a conscientious

examination of it, he should so advise the court and request permission to

withdraw.” Gomez-Lugo’s counsel raises two potential issues but concluded they

are frivolous: (1) whether the district court erred in not finding him eligible for a

safety-valve adjustment under 18 U.S.C. § 3553(f) and USSG § 5C1.2(a); and (2)

whether he is entitled to relief under Padilla v. Kentucky, 130 S. Ct. 1473 (2010).

Under Padilla, an attorney’s failure to advise a non-citizen defendant of the

immigration consequences of pleading guilty to a crime can constitute ineffective




                                          -3-
assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). A

thorough review of the record confirms these issues are without merit.

      We review for clear error the district court’s determination that Gomez-

Lugo was not eligible for safety-valve relief. United States v. Cervantes, 519

F.3d 1254, 1256 (10th Cir. 2008). After a thorough review of the record, we find

there is nothing to suggest the district court clearly erred in denying Gomez-Lugo

a safety-valve adjustment. To qualify for the safety valve, a defendant must

“truthfully provide[] the Government all information and evidence that the

defendant has concerning the offense or offenses that were part of the same

course of conduct or of a common scheme or plan . . . .” 18 U.S.C. § 3553(f)(5);

USSG § 5C1.2(a). It was Gomez-Lugo’s burden to prove by a preponderance of

the evidence that he was entitled to the safety-valve adjustment. United States v.

Altamirano-Quintero, 511 F.3d 1087, 1098 (10th Cir. 2007), cert. denied, 553

U.S. 1019 (2008).

      In his debriefing, Gomez-Lugo acknowledged his own complicity in the

offense but offered few details about his co-conspirators. Gomez-Lugo told the

government that he worked for “Gato,” but he provided very little information

that would help the government identify or locate Gato. Gomez-Lugo gave no

reason why his statements were so limited, and the district court “[did not] find

the defendant’s testimony to be fully forthright and convincing.” R., Vol. 3 at 27.




                                         -4-
Gomez-Lugo cannot overcome the trial court’s determination that he failed to

make a complete and truthful disclosure concerning his offense.

      The record is also clear that Gomez-Lugo is not entitled to relief under

Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010), for his counsel’s purported

failure to advise him about the immigration consequences to his plea. We have

consistently held that “[i]neffective 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. Calderon, 428 F.3d 928, 931 (10th Cir. 2005) (quoting United

States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc)) (quotation

marks omitted). Indeed, on direct appeal, the record is not developed with the

purpose of showing counsel’s competence, and the district court has not yet had

an opportunity to consider counsel’s effectiveness. See Massaro v. United States,

538 U.S. 500, 505–06 (2003).

      But in this case, even though the record is insufficiently developed to

reveal whether Gomez-Lugo’s lawyer’s professional conduct was deficient, it is

clear that any purported error was not prejudicial. See Strickland, 466 U.S. at

688, 694 (1984). Gomez-Lugo was plainly made aware that he could be deported,

whether or not he pleaded guilty. The PSR, which Gomez-Lugo read and

reviewed in Spanish, states that Gomez-Lugo “is a citizen and national of Mexico

with no legal authority to be in or reside [in] the United States” and, further, that

                                          -5-
“[h]e plans to live with family after he is deported as a result of the instant

criminal conduct.” R., Vol. 2 at 8 (PSR). Given Gomez-Lugo’s awareness that

he would be deported, he cannot establish prejudice under Strickland.

                                   III. Conclusion

      After an independent review of the record, we agree that any potential issue

to be raised on appeal would be “wholly frivolous.” Anders, 386 U.S. at 744. We

therefore GRANT counsel’s motion to withdraw and DISMISS the appeal.

                                                Entered for the Court

                                                Timothy M. Tymkovich
                                                Circuit Judge




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