                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  March 31, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                          No. 10-4125
 v.                                             (D.C. No. 2:09-CR-00108-TC-2)
                                                           (D. Utah)
 EDUARDO BANUELOS-BARRAZA,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before LUCERO, GORSUCH, and MATHESON, Circuit Judges.


      Eduardo Banuelos-Barraza pleaded guilty to one count of possession of

cocaine with intent to distribute and one count of reentering as a previously

removed alien. The district court then sentenced Mr. Banuelos-Barraza to 46

months in prison followed by 60 months supervised release. Trial counsel

subsequently withdrew from the case, but filed a notice of appeal before she did. 1

      *
         After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). 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order and judgment is not binding precedent except under the doctrines of law of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. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      1
           Mr. Banuelos-Barraza’s appellate counsel points out that the notice of
                                                                       (continued...)
Mr. Banuelos-Barraza’s newly appointed appellate counsel has now filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), advising us that she

discerns no colorable basis for the appeal and seeking leave to withdraw.

      Anders authorizes a defendant’s lawyer to seek permission to withdraw

from an appeal if, “after a conscientious examination,” the lawyer finds the

appeal “wholly frivolous.” 386 U.S. at 744. Invoking Anders requires the lawyer

to “submit a brief to the client and the appellate court indicating any potential

appealable issues based on the record.” United States v. Calderon, 428 F.3d 928,

930 (10th Cir. 2005) (citing Anders, 386 U.S. at 744). The client may then

submit his own arguments for the court’s consideration. Id. And we must then

“conduct a full examination of the record to determine whether [the] defendant’s

claims are wholly frivolous.” Id. If they are, we may grant counsel’s motion to

withdraw and dismiss the appeal. Id.

      In her Anders brief, Mr. Banuelos-Barraza’s current counsel identifies three

potential points of appeal in this case: the district court’s decision denying Mr.

Banuelos-Barraza’s motion to suppress; the reasonableness of the sentence the


      1
        (...continued)
appeal was not timely filed, coming one day after the 14 day period afforded by
Fed. R. App. P. Rule 4(b)(1)(A). This rule is not jurisdictional, however, see
United States v. Garduno, 506 F.3d 1287, 1290-91 (10th Cir. 2007), and we have
declined to enforce it sua sponte in circumstances similar to these, see United
States v. Mitchell, 518 F.3d 740, 750-51 (10th Cir. 2008). Mr.
Banuelos-Barraza’s motion to modify the record on appeal is mooted by this
ruling.

                                         -2-
district court chose; and the effectiveness (or ineffectiveness) of trial counsel.

All three lines of attack, counsel argues, would be pointless, lacking any merit.

Despite being afforded opportunity to do so, Mr. Banuelos-Barraza has not

submitted any materials disputing this analysis or identifying any other additional

arguments he would like to pursue. Similarly, the government has indicated by

letter its intent not to respond to the Anders brief. After our own independent

review of the record, we agree with Mr. Banuelos-Barraza’s counsel that any

appeal in this case would be fruitless.

      First, the Anders brief argues that, if we were to reach the merits of the

district court’s suppression ruling, we would find no error in it. With this we

agree. Mr. Banuelos-Barraza consented to the search in question. What’s more,

as the district court found, the searching officer had reasonable suspicion of a

traffic violation to justify stopping Mr. Banuelos-Barraza’s vehicle; reasonable

suspicion of criminal activity to justify continuing the stop while waiting for a

drug detecting dog; and probable cause to search Mr. Banuelos-Barraza’s vehicle

once the drug detecting dog alerted. In these circumstances, the district court’s

finding that the search comported with the Fourth Amendment is unassailably

correct and any appeal of it would be pointless. 2

      2
        Separately, the Anders brief argues that Mr. Banuelos-Barraza waived
any right to challenge the district court’s suppression ruling when he chose to
accept an unconditional plea agreement. With this, however, we cannot agree.
This court has held that the “government cannot rely on defense counsel’s
                                                                      (continued...)

                                          -3-
      Second, the Anders brief raises the possibility that Mr. Banuelos-Barraza

might challenge his sentence. But our review of Mr. Banuelos-Barraza’s

sentence, which is at the bottom of the advisory guidelines range, confirms

counsel’s assessment that it is neither procedurally nor substantively

unreasonable. We therefore agree with Mr. Banuelos-Barraza’s counsel that this

avenue of appeal would be unavailing as well.

      Third, the Anders brief raises the possibility that Mr. Banuelos-Barraza

might argue his trial counsel was ineffective. The brief correctly notes, however,

that except in extraordinary circumstances claims of ineffective assistance of

counsel “should be brought in collateral proceedings rather than on direct appeal

from a conviction.” See United States v. Brooks, 438 F.3d 1231, 1242 (10th Cir.



      2
        (...continued)
raising” the existence of a plea agreement waiver “in an Anders brief as a
substitute for fulfilling [the government’s] own obligation to seek enforcement of
the plea agreement.” Calderon, 428 F.3d at 931. And there is no motion from the
government seeking to enforce an appellate waiver in this case — only defense
counsel’s estimation that such a motion would succeed if it were forthcoming. Of
course, the requirement of a motion seeking to enforce an appellate waiver isn’t
meant to be an empty formalism. If defense counsel had “ascertain[ed] and
certif[ied]” to this court that the “[g]overnment would rely on the defendant’s
appellate waiver before moving to withdraw,” we could have, without the
necessity of motions practice, been sure that the government would have invoked
the plea waiver and agreed with defense counsel’s assessment that the plea
agreement barred her client’s way. United States v. Davis, 530 F.3d 318, 320 (5th
Cir. 2008). Likewise, if there was evidence that the government had “formally
committed itself always to enforce appellate waivers,” defense counsel’s position
here “would be stronger.” Id. But we have nothing like that in this case, just a
speculative possibility that the government might invoke a winning argument.

                                        -4-
2006). And, like counsel, we discern no reason why we would depart from that

rule in this case.

       Counsel’s motion to withdraw is granted and this appeal is dismissed.


                                      ENTERED FOR THE COURT


                                      Neil M. Gorsuch
                                      Circuit Judge




                                        -5-
