                                                                           F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                           June 15, 2006
                                  TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                           Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,                          No. 05-4095
          v.                                                  (D. Utah)
 JUAN CARLOS RAM IREZ-M UNOZ,
                                                    (D.C. No. 04-CR-684-DAK)
               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, 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 appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      On December 10, 2004, Juan Carlos Ramirez-M unoz pleaded guilty to one

count of reentry of a deported alien, in violation of 8 U.S.C. § 1326. He had

previously been convicted of an aggravated felony when he was a juvenile. The



      *
        This order and judgment is not binding precedent, except under the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.
district court sentenced him to 46 months’ imprisonment and 36 months’

supervised release. He directed counsel to appeal his sentence. M r. Ramirez-

M unoz’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), requesting leave to withdraw. W e grant counsel’s motion to withdraw

and dismiss the appeal.

      “[I]f 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.” Id. at 744. This court “must then conduct a full examination of the

record to determine whether defendant’s claims are wholly frivolous. If [we]

conclude[ ] after such an examination that the appeal is frivolous, [we] may grant

counsel’s motion to withdraw and may dismiss the appeal.” United States v.

Calderon, 428 F.3d 928, 930 (10th Cir. 2005) (internal citations omitted).

      Soon after the district court proceedings, M r. Ramirez-M unoz sent a letter

to counsel. He stated: “I feel strongly about the possibility of grounds for an

appeal based on inadequate/ineffective counsel, points miscalculation based on

juvenile record, possible double je[o]pardy issues along with various other

problems in my defense.” Aplt’s Br., A ddendum C.

      Initially, we note that M r. Ramirez-M unoz must pursue a claim of

ineffective assistance of counsel in a collateral proceeding under 28 U.S.C. §

2255. See United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en

banc) (“[Ineffective assistance] claims brought on direct appeal are presumptively

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dismissible, and virtually all will be dismissed.”).

      Counsel’s brief developed two possible appellate issues raised in the letter:

(1) the use of M r. Ramirez-M unoz’s prior conviction to enhance his § 1326

sentence may have violated the Ex Post Facto Clause or the Double Jeopardy

Clause; and (2) the district court may have erred by not granting a downward

departure based on cultural assimilation. W e find both arguments frivolous.

First, an aggravated felony enhancement to a § 1326 offense is not an Ex Post

Facto Clause violation. United States v. Cabrera-Sosa, 81 F.3d 998, 1001-02

(10th Cir. 1996). In addition, the sixteen-point enhancement was a “stiffened

penalty” for his § 1326 violation, rather than “a new jeopardy or additional

penalty for the earlier crime[].” Gryger v. Burke, 334 U.S. 728, 732 (1948).

      Second, the district court characterized M r. Ramirez-M unoz’s case as

“sympathetic” but declined to grant a downward departure. Aplt’s App. at 31.

The court stated that “it doesn’t seem to me to be out of the ordinary in terms of

the types of cultural assimilation arguments that I have heard and the factors that

are generally present.” Id. “[W]e do not have jurisdiction to review the district

court’s discretionary decision to deny a downward departure, [but] we have

jurisdiction post-Booker to review the sentence imposed for reasonableness.”

United States v. Chavez-Diaz, 444 F.3d 1223, 1229 (10th Cir. 2006). A sentence

within a properly calculated advisory range is presumptively reasonable, and

“[t]his is a deferential standard that [M r. Ramirez-M unoz] may rebut by

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demonstrating that the sentence is unreasonable when viewed against the other

factors delineated in [18 U.S.C.] § 3553(a).” United States v. Kristl, 437 F.3d

1050, 1054 (10th Cir. 2006). The 46-month sentence, at the bottom of the

advisory range, is reasonable. The advisory range was properly calculated, and

he has shown no mitigating factors that counsel a lower sentence.

      M r. Ramirez-M unoz filed a letter in response to counsel’s Anders brief. H e

claims that the court did not have power to convict him and the United States

Attorney did not have pow er to indict him because the Constitution and Congress

only give power to conduct legal proceedings in the name of the “United

States”–not the “United States of America.” W e reject this argument as frivolous.

      On M ay 9, 2006, he also filed a “M otion to File Additional Argument” that

challenges whether the district court had jurisdiction over his criminal

proceedings and whether the government had standing to bring suit against him.

W e grant the motion and reject the challenges to jurisdiction and standing as

frivolous. See 18 U.S.C. § 3231 (“The district courts of the United States shall

have original jurisdiction, exclusive of the courts of the States, of all offenses

against the law s of the United States.”). W e deny his request in the motion to

allow him thirty days to file any additional arguments after w e issue this order.




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      Accordingly, we GRANT counsel’s motion to withdraw and DISM ISS the

appeal.


                                  Entered for the Court,


                                  Robert H. Henry
                                  Circuit Judge




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