                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         JAN 23 2004
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk


 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 03-4022
          v.                                             (D. Utah)
 LEOBARDO CRUZ-MENDEZ, also                     (D.C. No. 2:02-CR-399-TC)
 known as Jose Manuel Vacame-Ruiz,

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before EBEL, HENRY, and HARTZ, 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 appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1. The 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        This order and judgment is not binding precedent, except under the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. 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.


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                               I. BACKGROUND

      Leobardo Cruz-Mendez pleaded guilty to illegal re-entry of a previously

removed alien, in violation of 8 U.S.C. § 1326. Though Mr. Cruz-Mendez had a

base offense level of eight, the district court applied a sixteen-level enhancement

because Mr. Cruz-Mendez was deported after conviction of an aggravated felony.

The court also granted Mr. Cruz-Mendez a three-level reduction for acceptance of

responsibility, leaving him with a total offense level of twenty-one. On January

14, 2003, the district court sentenced Mr. Cruz-Mendez to sixty-four months’

imprisonment, followed by thirty-six months’ supervised release. This sentence

falls within the middle of the fifty-seven to seventy-one month range provided by

the Sentencing Guidelines based on Mr. Cruz-Mendez’s offense level of twenty-

one and his criminal history category of IV.

      Mr. Cruz-Mendez now appeals his sentence, arguing that the district court

erred in (1) calculating his sentencing guideline range, (2) imposing a sentence in

the middle of the guideline range, and (3) ordering his sentence to run

consecutively to a previously imposed sentence for violation of supervised

release. Mr. Cruz-Mendez also argues that his counsel was ineffective.

      Mr. Cruz-Mendez’s attorney has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), and has moved for leave to withdraw as counsel.

The certificate of service indicates that Mr. Cruz-Mendez has been served with


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the brief and motion; no response has been received from him, and the

government has declined to file a response brief. We grant leave to withdraw and

affirm the conviction.



                                  II. DISCUSSION

      Anders holds that “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.” 386 U.S. at 744. Counsel’s request to withdraw must

“be accompanied by a brief referring to anything in the record that might arguably

support the appeal,” and a copy of this brief must be served on the client. Id.

Upon receiving an Anders brief, this court “proceeds, after a full examination of

all the proceedings, to decide whether the case is wholly frivolous.” Id. We have

fully examined the proceedings as required by Anders and conclude that this

appeal is wholly without merit.

      In calculating Mr. Cruz-Mendez’s sentencing guideline range, the district

court properly applied U.S.S.G. § 2L1.2, which establishes a base offense level of

eight for aliens who illegally reenter the United States, see U.S.S.G. § 2L1.2(a),

and provides for a sixteen-level enhancement if the defendant has previously been

convicted of “a drug trafficking offense for which the sentence imposed exceeded

13 months.” U.S.S.G. § 2L1.2(b)(1)(A)(i). Mr. Cruz-Mendez’s 1995 conviction


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for possession of a controlled substance with intent to distribute, for which he

was sentenced to twenty-fours months’ imprisonment, qualified him for the

sixteen-level enhancement. The district court also correctly calculated Mr. Cruz-

Mendez’s criminal history category. The court determined that Mr. Cruz-Mendez

had four criminal history points based on two prior drug convictions and then

added two points because Mr. Cruz-Mendez committed the offense while under

supervised release, see U.S.S.G. § 4A1.1(d), and one additional point because the

offense was committed less than two years after he was released from custody.

See U.S.S.G. § 4A1.1(e).

      The court’s imposition of a sentence in the middle of the guideline range

was also proper. Though the United States did recommend as a part of the plea

agreement that Mr. Cruz-Mendez be sentenced at the low end of the guideline

range, that recommendation did not limit the court’s discretion to sentence Mr.

Cruz-Mendez within the guideline range. The sixty-four month sentence imposed

was well within that range. Mr. Cruz-Mendez argues that the court should have

explained its reasons for sentencing him in the middle rather than the low end of

the guideline range; however, 18 U.S.C. § 3553(c) only requires a court to state

its reasons for imposing a particular sentence when the sentence is outside the

range or the range exceeds twenty-four months. That is not the case here.

      At the time that he committed the instant offense, Mr. Cruz-Mendez was


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serving a term of supervised release for his 1995 drug conviction. As a result of

his illegal reentry, Mr. Cruz-Mendez’s supervised release was revoked, and he

was sentenced to nine months’ imprisonment. Mr. Cruz-Mendez argues that the

district court should have ordered his sentence for illegal reentry to run

concurrently with his sentence for violation of supervised release, since both

sentences were based on the same underlying conduct. See U.S.S.G.§ 5G1.3(b)

(2002) (calling for concurrent sentencing when an “undischarged term of

imprisonment resulted from offense(s) that have been fully taken into account in

the determination of the offense level for the instant offense”). 1 “U.S.S.G. §

5G1.3(b)’s central aim is to ensure no defendant is punished twice for the same

crime.” United States v. Moyer, 282 F.3d 1311, 1316 (10th Cir. 2002) (internal

quotation marks omitted).

      In Moyer, we declined to apply U.S.S.G. § 5G1.3(b) where a defendant’s

conduct resulted in revocation of a term of probation and an additional sentence,

because the original term of probation stemmed from a separate offense. Id. at

1317; see also United States v. Tisdale, 248 F.3d 964, 976-77 (10th Cir. 2001)

(finding that U.S.S.G. § 5G1.3(c) provides the district court with the discretion to


      1
        Section 5G1.3(b) was amended effective November 1, 2003. However,
“[w]e ordinarily apply the version of the sentencing guidelines in effect at the
time of sentencing.” United States v. Owens, 70 F.3d 1118, 1130 (10th Cir.
1995). Accordingly, Mr. Cruz-Mendez may invoke the former version of §
5G1.3(b).

                                         -5-
sentence a defendant consecutively or concurrently where the conduct giving rise

to the instant offense resulted in revocation of probation). Moreover, at the time

of Mr. Cruz-Mendez’s sentencing, U.S.S.G. § 5G1.3, Application Note 6 (2002)

specifically provided that

      [i]f the defendant was on federal or state probation, parole, or
      supervised release at the time of the instant offense, and has had such
      probation, parole, or supervised release revoked, the sentence for the
      instant offense should be imposed to run consecutively to the term
      imposed for the violation of probation, parole, or supervised release. 2

See also U.S.S.G. § 7B1.3(f) (policy statement) (“Any term of imprisonment

imposed upon the revocation of probation or supervised release shall be ordered

to be served consecutively to any sentence that the defendant is serving, whether

or not the sentence of imprisonment being served resulted from the same conduct

that is the basis of the revocation of probation or supervised release.”).



      2
         This application note was amended effective November 1, 2003.
Undischarged terms of imprisonment resulting from revocation of supervised
release are now addressed in Application Note 3(C), which provides that

      [s]ubsection (c) applies in cases in which the defendant was on federal
      or state probation, parole, or supervised release at the time of the
      instant offense and has had such probation, parole, or supervised release
      revoked. Consistent with the policy set forth in Application Note 4 and
      subsection (f) of § 7B1.3 (Revocation of Probation or Supervised
      Release), the Commission recommends that the sentence for the instant
      offense be imposed consecutively to the sentence imposed for the
      revocation.

U.S.S.G. § 5G1.3, Application Note 3(C) (2003).

                                         -6-
Consequently, the district court was well within its discretion to order Mr. Cruz-

Mendez’s sentence for illegal reentry to run consecutively to his sentence for

violation of supervised release.

      As to Mr. Cruz-Mendez’s ineffective assistance claim, we have held that,

generally, “[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. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995); see also Massaro v. United

States, 123 S.Ct. 1690, 1694 (2003) (“In light of the way our system has

developed, in most cases a motion brought under § 2255 is preferable to direct

appeal for deciding claims of ineffective-assistance.”). We therefore decline to

consider Mr. Cruz-Mendez’s ineffective assistance claim in this direct appeal.

      After careful review of the proceedings, we agree with counsel that no non-

frivolous grounds for appeal appear on this record. Accordingly, we AFFIRM the

conviction and GRANT Mr. Cruz-Mendez’s counsel’s request to withdraw. We

DISMISS Mr. Cruz-Mendez’s claim for ineffective assistance of counsel.



                                   Entered for the Court,



                                   Robert H. Henry
                                   Circuit Judge

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