                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      March 26, 2007
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                            __________________________                 Clerk of Court

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

          Plaintiff-Appellee,
                                                        No. 06-2288
 v.                                              (D.Ct. No. CR -05-2637-JP)
                                                         (D . N.M .)
 LEO N EL V ILLEG A S-M O LIN A,

          Defendant-Appellant.
                        ____________________________

                                OR D ER AND JUDGM ENT *


Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior
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). The case is

therefore ordered submitted without oral argument.



      Appellant Leonel Villegas-M olina, a federal prisoner represented by



      *
         This order and judgment is not binding precedent except under the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.
counsel, pled guilty to one count of reentry of a deported alien previously

convicted of an aggravated felony, in violation of 8 U.S.C. § 1326(a)(1) and

(b)(2). The district court sentenced M r. Villegas-M olina to forty-six months

imprisonment follow ed by three years supervised release. W hile M r. Villegas-

M olina appeals the district court’s sentence, his attorney has filed an Anders brief

and motion to withdraw as counsel. See Anders v. California, 386 U.S. 738, 744

(1967). W e grant counsel's motion to w ithdraw and dismiss M r. Villegas-

M olina’s appeal.



      M r. Villegas-M olina was charged in a one-count indictment with unlawful

reentry by a deported alien previously convicted of an aggravated felony, in

violation of 8 U.S.C. § 1326(a)(1) and (b)(2). He entered a plea of guilty to the

indictment. The record further establishes that in 1992, in case number CR-92-

2689, in the Second Judicial District Court of New M exico, M r. Villegas-M olina

was convicted of assault with intent to commit a violent crime on a peace officer;

and in 1993 he was convicted of reentry after deportation, following his initial

deportation in February 1989 and subsequent deportations in December 1989 and

July or A ugust 1991.



      After M r. Villegas-M olina pled guilty, the probation officer prepared a

presentence report in which he calculated M r. Villegas-M olina’s sentence,

                                          -2-
determining: 1) his base offense level was eight, pursuant to United States

Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) § 2L1.2(a); 2) the base level

should be increased sixteen levels, to twenty-four, pursuant to U.S.S.G.

§ 2L1.2(b)(1)(A), because he was deported following conviction of an aggravated

felony for assault on a peace officer, which constituted a crime of violence; 3) he

should receive a three-level reduction for acceptance of responsibility, pursuant to

U.S.S.G. § 3E1.1; and 4) the total offense level should be twenty-one. Based on

M r. Villegas-M olina’s prior criminal history, the probation officer calculated his

criminal history level at IV , resulting in a Guidelines range of fifty-seven to

seventy-one months imprisonment. M r. Villegas-M olina filed objections and a

motion for downward departure, to which the probation officer responded by

preparing a second addendum to the presentence report – copies of which have

not been filed in the record on appeal for our review.



      At sentencing, M r. Villegas-M olina’s counsel did not dispute the facts

represented in the presentence report, but explained M r. Villegas-M olina’s

criminal history was overstated and requested a criminal history score of III,

rather than IV, be used to calculate his Guidelines range, to which the government

did not object. The district court then determined the criminal history category of

IV substantially over-represented the seriousness of M r. Villegas-M olina’s

criminal history and that the appropriate criminal history category of III applied,

                                          -3-
resulting in a Guidelines range of forty-six to fifty-seven months imprisonment.

The district court then noted it had read both the defendant’s objections to the

presentence report and the motion for downward departure, as well as the

presentence report and addendum addressing the objections and motion, and it did

not find a basis for a downward departure except on the criminal history category.

It also stated it read the various written materials previously submitted by M r.

Villegas-M olina and his counsel and also reviewed his certificates of completion

of an English as a second language course and typing courses, which w ere

submitted at the hearing. Based on the information M r. Villegas-M olina provided

at his change of plea hearing, the district court stated M r. Villegas-M olina

knowingly, voluntarily, and intelligently entered a plea of guilty to the

indictment. The district court then entered a sentence of forty-six months, at the

bottom of the Guidelines range, stating it had reviewed the presentence report, the

applicable Guidelines, and the factors under 18 U.S.C. § 3553(a)(1) through (7).



      After M r. Villegas-M olina filed a timely notice of appeal, his counsel filed

an Anders appeal brief, alleging no meritorious appellate issues exist and moving

for an order permitting him to withdraw as counsel. See Anders, 386 U.S. at 744.

Specifically, his counsel pointed out: 1) M r. Villegas-M olina’s sentence “was not

imposed in violation of law nor as a result of an incorrect application of the




                                          -4-
advisory United States Sentencing Guidelines”; 1 2) by lowering his criminal

history category from IV to III, the district court correctly sentenced him to forty-

six months incarceration, which, under the circumstances presented, did not rise

to a level of unreasonableness; and 3) after carefully examining the record and

applicable law, counsel could not identify a legally non-frivolous issue for appeal.



      Pursuant to Anders, this court gave M r. Villegas-M olina an opportunity to

raise points in response to his attorney’s Anders brief. Id. M r. Villegas-M olina

responded, stating, among other things: 1) 8 U.S.C. § 1326, under which he was

convicted, is unconstitutional; 2) his indictment failed to allege his deportation

occurred after conviction of a particular aggravated felony or cite to 8 U.S.C.

§ 1326; 3) he only pled guilty to illegal reentry and not the prior aggravated

felony; 4) because of his “status as a deportable alien, he would serve his

sentence under circumstances more severe than those facing citizens under similar

circumstances”; 5) use of his prior conviction for aggravated assault was in

violation of United States v. Booker, 543 U.S. 220 (2005); 6) his counsel at the

sentencing hearing failed to show the district court proof of his GED, school

      1
         M r. Villegas-M olina’s counsel is relying on 18 U.S.C. § 3742(a), which
states that a sentence which falls within the Guidelines cannot be successfully
appealed unless it is imposed in violation of law, as a result of an incorrect
application of the Guidelines, or is otherwise premised on facial illegality,
improper calculations, or clearly erroneous fact findings. See 18 U.S.C.
§ 3742(a)(1) and (2).


                                         -5-
records, check stubs, W -2 tax forms, and a letter to President Bush; and instead,

when M r. Villegas-M olina tried to speak, his counsel told him to be quiet; 7) his

aggravated felony conviction occurred fourteen years ago, and at the time he was

young and unaware of the consequences; 8) since his deportation in 1995, he has

worked, stayed out of trouble, and provided for his wife and two daughters – one

who is a college student and the other who is eight years old and is very attached

to him; and 9) his entire family, including his aging parents, are in the United

States and he has no one in M exico, where he finds it difficult to live. W e

construe M r. Villegas-M olina’s arguments as a claim his counsel provided

ineffective assistance, and claims his sentence was imposed in violation of law

pursuant to 18 U.S.C. § 3742, or his sentence is otherwise unreasonable in light of

the § 3553(a) factors, including the nature and circumstances of his offense and

his history and characteristics.



      As required by Anders, we have conducted a full examination of the record

before us. See 386 U.S. at 744. W e begin by noting M r. Villegas-M olina has not

shown he raised any of his arguments before the district court for its review.

Nevertheless, when a defendant’s “claim is merely that the sentence is

unreasonably long, we do not require the defendant to object in order to preserve

the issue.” United States v. Torres-Duenas, 461 F.3d 1178, 1183 (10th Cir.

2006), petition for cert. filed (Nov. 22, 2006) (No. 06-7990). Instead, we review

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for reasonableness the sentence’s length, as guided by the factors in 18 U.S.C.

§ 3553(a). See id. W e review for reasonableness the sentence imposed and have

determined a presumption of reasonableness attaches to a sentence, like here,

which is within the correctly-calculated Guidelines range. See United States v.

Kristl, 437 F.3d 1050, 1053-54 (10th Cir. 2006) (per curiam). W e require

reasonableness in two respects – “the length of the sentence, as well as the

method by which the sentence was calculated.” Id. at 1055 (emphasis omitted).

This involves an assessment of the procedural and substantive reasonableness of

the sentence. See United States v. Cage, 451 F.3d 585, 591 (10th Cir. 2006). If

the district court “properly considers the relevant Guidelines range and sentences

the defendant within that range, the sentence is presumptively reasonable,” but

“[t]he defendant may rebut this presumption by demonstrating that the sentence is

unreasonable in light of the other sentencing factors laid out in § 3553(a).”

Kristl, 437 F.3d at 1055. In determining whether the district court properly

considered the applicable Guidelines range, we review its legal conclusions de

novo and its factual findings for clear error. Id. at 1054.



      W ith these principles in mind and after a careful review of the record, w e

note the district court in this case explicitly considered the factors in § 3553(a), 2

      2
          18 U.S.C. § 3553(a) provides, in part, that the court shall consider:

                                                                          (continued...)

                                           -7-
and therefore the record provides a clear “indication” it considered the requisite

factors. See United States v. Sanchez-Juarez, 446 F.3d 1109, 1115-16 (10th Cir.

2006). In fact, the district court reduced the criminal history score after hearing

M r. Villegas-M olina’s argument his criminal history was overstated, which

resulted in a lower Guidelines range than initially calculated. Because the district

court properly considered the relevant Guidelines range and sentenced M r.

Villegas-M olina within that range, his sentence is presumptively reasonable and

M r. Villegas-M olina clearly has not rebutted this presumption by demonstrating

the sentence is unreasonable in light of the sentencing factors in § 3553(a). See

Kristl, 437 F.3d at 1055. In other words, M r. Villegas-M olina has not shown the

circumstances he describes, when viewed in light of the § 3553(a) factors, are

sufficient to transform his presumptively reasonable sentence into an

      2
       (...continued)
      (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant;
      (2) the need for the sentence imposed--
             (A) to reflect the seriousness of the offense, to promote respect
             for the law, and to provide just punishment for the offense;
             (B) to afford adequate deterrence to criminal conduct;
             (C) to protect the public from further crimes of the defendant;
             and
             (D) to provide the defendant with needed educational or
             vocational training, medical care, or other correctional
             treatment in the most effective manner;
      (3) the kinds of sentences available; ...
      (6) the need to avoid unwarranted sentence disparities among
      defendants with similar records who have been found guilty of
      similar conduct; and
      (7) the need to provide restitution to any victims of the offense.

                                         -8-
unreasonable one.



      As to M r. Villegas-M olina’s other arguments that his sentence is in

violation of the law, we generally will not address arguments presented for the

first time on appeal. See U nited States v. M ora, 293 F.3d 1213, 1216 (10th Cir.

2002). Even if we were to consider them, they are clearly without merit. For

example, contrary to M r. Villegas-M olina’s contentions, the indictment explicitly

states he was previously convicted of an aggravated felony and that he reentered

the United States in violation of 8 U.S.C. § 1326, to which he pled guilty; no

support exists for his cursory claim 8 U .S.C. § 1326 is facially or otherwise

unconstitutional; and Booker does not prohibit the use of a prior conviction in

calculating a sentence, but stands for the proposition the fact of a prior conviction

need not be submitted to a jury or proved beyond a reasonable doubt. See Booker,

543 U.S. at 244.



      Finally, ineffective assistance of counsel claims generally should be

brought in the first instance on collateral review under 28 U.S.C. § 2255 to ensure

this court receives a developed factual record, assisted by a district court’s

opinion, given the district court is more familiar with the underlying proceedings

and counsel’s performance. See United States v. Brooks, 438 F.3d 1231, 1242

(10th Cir. 2006). In this case, it appears at least some of the documents which

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M r. Villegas-M olina complains his counsel failed to give to the district court at

the sentencing hearing may have been submitted to the district court prior to or at

that hearing, which the district court reviewed before imposing M r. Villegas-

M olina’s sentence. However, because the record is insufficient for the purpose of

making such a determination, we decline to consider M r. Villegas-M olina’s

ineffective assistance of counsel claim on direct appeal.



      For these reasons, no meritorious appellate issues exist. Accordingly, w e

G R A N T counsel’s motion to withdraw and DISM ISS M r. Villegas-M olina’s

appeal.



                                        Entered by the C ourt:

                                        W ADE BRO RBY
                                        United States Circuit Judge




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