                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          APR 20 2005

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.
                                                        No. 04-2247
 ORLANDO ZAMARRON-PEREZ,                         (D.C. No. CR-04-1033 JB)
 also known as Javier Fernandez, also                  (New Mexico)
 known as Enrique Martinez, also
 known as Gerardo Martinez, also
 known as Juan Carlos Perez,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Orlando Zamarron-Perez pled no contest to one count of reentry of a

deported alien previously convicted of an aggravated felony in violation of 8

      *
       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 submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
U.S.C. §§ 1326(a) and (b)(2). Based on a total offense level of thirteen and a

criminal history category of VI, Mr. Zamarron-Perez’s guidelines sentence range

was calculated at thirty-three to forty-one months incarceration. The district court

sentenced him at the top of that range to a forty-one month term. Mr. Zamarron-

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

(1967), and moved for leave to withdraw as counsel. We grant counsel’s motion

to withdraw and dismiss the appeal.

      Anders holds that if counsel finds a case to be wholly frivolous after

conscientious examination, he may so advise the court and request permission to

withdraw. Counsel must also submit to both the court and his client a brief

referring to anything in the record arguably supportive of the appeal. The client

may then raise any point he chooses, and the court thereafter undertakes a

complete examination of all proceedings and decides whether the appeal is in fact

frivolous. If it so finds, it may grant counsel’s request to withdraw and dismiss

the appeal. Id. at 744. Pursuant to Anders, counsel provided Mr. Zamarron-Perez

with a copy of his appellate brief and Mr. Zamarron-Perez filed a pro se reply

brief raising two issues.

      Mr. Zamarron-Perez first complains that he was denied his Sixth

Amendment right to effective assistance of counsel. We have held that

ineffective assistance of trial counsel claims should be brought in collateral


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proceedings, not on direct appeal. United States v. Galloway, 56 F.3d 1239, 1240

(10th Cir. 1995). “Such claims brought on direct appeal are presumptively

dismissible, and virtually all will be dismissed.” Id. Mr. Zamarron-Perez has

failed to show that his claim qualifies as one of those “rare instances” in which

we should hear an ineffective counsel challenge on direct review. Id.

      Mr. Zamarron-Perez also contends his sentence was imposed in violation of

United States v. Booker, 125 S. Ct. 738 (2005). In Booker, the Supreme Court

applied the rule it expressed in Apprendi v. New Jersey, 530 U.S. 466 (2000), to

the Federal Sentencing Guidelines, holding that the Sixth Amendment requires

“[a]ny fact (other than a prior conviction) which is necessary to support a

sentence exceeding the maximum authorized by the facts established by a plea of

guilty or a jury verdict must be admitted by the defendant or proved to a jury

beyond a reasonable doubt.” 125 S. Ct. at 756. To remedy the guidelines’ Sixth

Amendment problem, the Court severed and excised 18 U.S.C. § 3553(b)(1),

which required mandatory application of the guidelines. Id. at 756-57, 765. As a

result, the guidelines are now advisory in all cases. Id. at 757. In addition, the

Court expressly stated that its “remedial interpretation of the Sentencing Act”

must be applied “to all cases on direct review.” Id. at 769. In determining Mr.

Zamarron-Perez’s sentence, the district court did not rely upon judge-found facts,

but it did apply the then-mandatory federal sentencing guidelines. We must


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therefore evaluate Mr. Zamarron-Perez’s sentence in light of Booker.

      Because Mr. Zamarron-Perez did not raise his non-constitutional Booker

claim in district court, we review for plain error. F ED R. C RIM . P. 52(b); United

States v. Gonzalez-Huerta, No. 04-2045, 2005 WL 807008, at *3 (10th Cir. Apr.

8, 2005) (en banc). To establish plain error, Mr. Zamarron-Perez must

demonstrate there was (1) error (2) that was plain and (3) affected his substantial

rights. United States v. Cotton, 535 U.S. 625, 631 (2002); Gonzalez-Huerta, 2005

WL 807008, at *3. If he satisfies his burden of establishing the first three prongs

of the plain error test, we may exercise our discretion to correct the error if it

“seriously affect[ed] the fairness, integrity or public reputation of judicial

proceedings.” Johnson v. United States, 520 U.S. 461, 469-70 (1997) (quoting

United States v. Olano, 507 U.S. 725, 736 (1993)); Gonzalez-Huerta, 2005 WL

807008, at *3.

      Mr. Zamarron-Perez easily satisfies the first two prongs of plain error

analysis. First, the district court, albeit unknowingly, committed error by

applying the guidelines as mandatory in sentencing Mr. Zamarron-Perez. See

Gonzalez-Huerta, 2005 WL 807008, at *3. Second, the error is now “plain” or

“obvious.” Johnson, 520 U.S. at 468 (“where the law at the time of trial [or

sentencing] was settled and clearly contrary to the law at the time of appeal – it is

enough that an error be ‘plain’ at the time of appellate consideration”). We need


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not decide whether Mr. Zamarron-Perez can satisfy his burden under the third

prong of plain error analysis “because even assuming [his] substantial rights were

affected, the error did not seriously affect the fairness, integrity, or public

reputation of judicial proceedings.” Cotton, 535 U.S. at 632-33; Johnson, 520

U.S. at 469-70; Gonzalez-Huerta, 2005 WL 807008, at *6 (“We need not

determine whether [the defendant] can satisfy this burden because even if he were

to meet the third prong, he must also satisfy the fourth prong to obtain relief.”).

      This court “will not notice a non-constitutional error, such as the one in the

case before us, unless it is both ‘particularly egregious’ and our failure to notice

the error would result in a ‘miscarriage of justice.’” Gonzalez-Huerta, 2005 WL

807008, at *7 (quoting United States v. Gilkey, 118 F.3d 702, 704 (10th Cir.

1997)). After the district court determined that Mr. Zamarron-Perez’s applicable

guidelines range was thirty-three to forty-one months, it opted to sentence Mr.

Zamarron-Perez to a forty-one month term of imprisonment. In other words, the

court exercised its discretion and in doing so sentenced Mr. Zamarron-Perez to

serve the maximum term of imprisonment it could lawfully impose. As a result,

any argument that the district court might have sentenced Mr. Zamarron-Perez

differently had it understood it had discretion to do so is simply unpersuasive.

Given “there is no record evidence to support a lower sentence, we cannot

conclude that [Mr. Zamarron-Perez’s] sentence is particularly egregious or a


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miscarriage of justice.” Id. at *8.

      Because Mr. Zamarron-Perez has no meritorious grounds for appeal, we

GRANT counsel’s request to withdraw and we DISMISS the appeal.



                                      ENTERED FOR THE COURT

                                      Stephanie K. Seymour
                                      Circuit Judge




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