                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                    September 28, 2006
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


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

               Plaintiff - Appellee,                     No. 05-1348
          v.                                             D. Colorado
 GABRIEL FLORES, also known as                (D.C. No. 04-CR-00027-2-EW N)
 “Gabe,”

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before TA CH A, Chief Judge, A ND ER SO N and BROR BY, 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(G). This cause is

therefore ordered submitted without oral argument.

      Pursuant to a plea agreement, defendant/appellant Gabriel Flores pled

guilty to one count of conspiracy to distribute and possess with intent to distribute


      *
       This order and judgment is not binding precedent, except under the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.
five kilograms or more of cocaine and fifty grams or more of methamphetamine

or 500 grams or more of a mixture or substance containing a detectable amount of

methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii)(II),

(b)(1)(A )(viii) and 846. He was sentenced to seventy-one months’ imprisonment,

followed by five years of supervised release. He has timely appealed.

      Flores’s appointed counsel, Glen Anstine, has filed an Anders brief and

moved to withdraw as counsel. See Anders v. California, 386 U.S. 738 (1967).

Flores has not filed a response, and the government has declined to file a brief.

W e therefore base our conclusion on counsel’s brief and our own review of the

record. For the reasons set forth below , we agree with M r. Anstine that the record

in this case provides no nonfrivolous basis for an appeal, and we therefore grant

his motion to withdraw and dismiss this appeal.



                                 BACKGROUND

      W e summarize the facts relevant to Flores’s guilty plea from the plea

agreement. Flores worked in California for a source of cocaine and

methamphetamine. He transported large quantities of cocaine and

methamphetamine from this source in California to members of the M elina family

in Denver, Colorado. M ore specifically, Flores negotiated drug deals with M elina

family members, including several co-defendants, arranged for transportation of

drugs, helped transport the drugs and helped transport money back to the source

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in California. The plea agreement calculated the total amount of cocaine involved

in the conspiracy as 991.3 grams and the total amount of methamphetamine as

452 grams. Based in part upon information, including taped conversations,

provided by a confidential informant, Flores was arrested on M arch 25, 2004.

      Shortly after his arrest, Flores indicated that he was interested in providing

information in exchange for a sentence reduction motion. Because Flores was the

first in the case to choose to cooperate with authorities, he helped secure plea

dispositions from and further cooperation from his co-defendants.

      As indicated, Flores pled guilty pursuant to a plea agreement. The

government agreed in the plea agreement to file a motion for a three-level

decrease for acceptance of responsibility, pursuant to United States Sentencing

Commission, Guidelines M anual (“USSG”) (2004) §3E1.1(b). Flores agreed to

cooperate fully with the government and, in exchange, the government agreed:

      if [the government] determines, in its sole discretion, that the
      defendant has cooperated fully, provided substantial assistance to law
      enforcement authorities and otherwise complied with the terms of
      this agreement, the government, at the time of sentencing, will file a
      motion with the sentencing Court pursuant to [USSG] [§ ]5K1.1 . . .
      and [18 U.S.C. §] 3553(e). This motion will permit the Court, in its
      discretion, to impose a sentence below the applicable Sentencing
      Guidelines range and th[e] statutory minimum.

Plea Agreement at 3, R. Vol. I, tab 117. The government further pledged:

      In consideration of this proposed cooperation, and pursuant to
      Section 5K1.1 of the sentencing guidelines, the government states its
      intention to recommend that the Court depart at least 35% or to a
      sentence of no more than 71 months. The nature and extent of the

                                         -3-
      defendant’s cooperation, as well as the final requested departure, will
      be set forth in the 5K1.1 motion.

Id. at 4. See Fed. R. Crim. P. 11(c)(1)(A), (B).

      The plea agreement also included an estimated guidelines sentencing range

of 108 to 135 months, which was based upon a total offense level of 31 and a

tentative criminal history category of I. The agreement further noted, however,

that the proposed USSG §5K1.1 motion to reduce Flores’s sentence by 35%

would result in a sentence of seventy-one months.

      In preparation for sentencing, the United States Probation Office prepared a

presentence report (“PSR”). The PSR calculated Flores’s advisory guidelines

sentencing range identically to the plea agreement. At Flores’s sentencing

hearing, his counsel asked for a sixty-month sentence, apparently based upon the

notion of starting the guideline calculation at the statutory mandatory minimum of

120 months rather than at offense level 36. 1 The government sought the seventy-

one month sentence stated in the plea agreement.

      The district court acknowledged that it had the authority to sentence Flores

to something below the seventy-one month sentence stated in the plea agreement

and recommended by the government’s §5K1.1 motion, but it declined to do so.




      1
       Appellate counsel, who is different from trial counsel, admits that it was a
“somewhat confusing proposition.” Appellant’s Br. at 4. Our review of the
transcript of the sentencing hearing bears out that characterization.

                                         -4-
It then imposed the sentence of seventy-one months, followed by five years of

supervised release. This appeal followed.



                                   D ISC USSIO N

      Under Anders, “counsel [may] request permission to withdraw [from an

appeal] where counsel conscientiously examines a case and determines that any

appeal would be wholly frivolous.” United States v. Calderon, 428 F.3d 928, 930

(10th Cir. 2005) (citing Anders, 386 U.S. at 744). This process requires counsel

to

      submit a brief to the client and the appellate court indicating any
      potential appealable issues based on the record. The client may then
      choose to submit arguments to the court. The [c]ourt must then
      conduct a full examination of the record to determine whether
      defendant’s claims are wholly frivolous. If the court concludes after
      such an examination that the appeal is frivolous, it may grant
      counsel’s motion to withdraw and may dismiss that appeal.

Id. (citing Anders, 386 U.S. at 744).

      Flores’s trial counsel listed the following issues in the docketing statement

filed with this court: (1) Flores’s guilty plea was not knowing, intelligent and

voluntary; (2) Flores received ineffective assistance of counsel; and (3) the

district court abused its discretion when it sentenced Flores to seventy-one

months.

      W e agree with Flores’s appellate counsel that the record contains no

evidence supporting those arguments. Thus, we perceive no nonfrivolous basis

                                         -5-
upon which to appeal. W ith respect to the allegation that Flores did not

knowingly, intelligently and voluntarily enter into the plea agreement, the record

reveals that, throughout the entire process of the plea negotiation and the ultimate

imposition of sentence, the court was extremely careful to ensure that Flores

received Spanish translations of every document, that he thoroughly understood

what was happening and that he understood the consequences of entering into the

plea agreement. He repeatedly indicated his understanding of and acquiescence in

the plea agreement.

      Similarly, there is no indication whatsoever that Flores’s counsel was

ineffective to such an extent that Flores’s guilty plea was involuntary. To the

extent Flores is attempting to make a broader claim of ineffectiveness, we note

that ordinarily, such claims are properly brought on collateral review, not on

direct appeal. See United States v. Brooks, 438 F.3d 1231, 1242 (10th Cir. 2006).

Indeed, “[i]neffective assistance claims brought on direct appeal are

presumptively dismissible.” Id. (quotations omitted). In rare cases, we will

permit an ineffective assistance claim to be raised on direct appeal when the

record needs no further development. Id. However, “even if the record appears

sufficient, ‘the claim should still be presented first to the district court in

collateral proceedings (which can be instituted without delay) so the reviewing

court can have the benefit of the district court’s views.’” Id. (quoting United

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

                                           -6-
      Finally, there is no basis upon which to challenge the seventy-one month

sentence imposed as unreasonable. It was both reasoned and reasonable, and

quite beneficial to Flores, as it was considerably below the advisory guideline

sentencing range and modest in comparison with the statutory maximum of life

imprisonment.



                                  C ON CLU SIO N

      For the foregoing reasons, we GRANT counsel’s motion to withdraw and

we DISM ISS this appeal.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




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