                                                                  FILED
                                                      United States Court of Appeals
                       UNITED STATES COURT OF APPEALS         Tenth Circuit

                                    TENTH CIRCUIT                            January 24, 2013

                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court

 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,                                 No. 12-1202
                                                    (D.C. No. 1:11-CR-00472-RBJ-1)
 v.                                                            (D. Colo.)

 PERFECTO GONZALEZ-
 CALZADILLAS,

        Defendant - Appellant.


                                ORDER AND JUDGMENT*


Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges.


       Perfecto Gonzalez-Calzadillas pled guilty to one count of illegally reentering the

United States after a previous deportation in violation of 8 U.S.C. §§ 1326(a) and (b)(1),

and he was sentenced to 46 months of imprisonment. He filed a timely notice of appeal

of the district court’s sentencing. After a diligent search of the record, his counsel

        *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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
determined there were no non-frivolous issues that could support an appeal. Mr.

Gonzalez-Calzadillas’s counsel therefore filed a motion to withdraw and a brief pursuant

to Anders v. California, 386 U.S. 738 (1967). Exercising jurisdiction under 28 U.S.C.

§ 3742(a)(2) and finding no non-frivolous issues, we grant counsel’s motion to withdraw

and dismiss the appeal.

                                   I. BACKGROUND

       Mr. Gonzalez-Calzadillas was indicted on November 14, 2011, on one count of

illegal reentry after removal subsequent to a felony conviction in violation of 8 U.S.C.

§§ 1326(a) and (b). He pled guilty pursuant to a plea agreement with the Government in

exchange for the Government’s support of a three-level reduction in his offense-level

calculation under the U.S. Sentencing Guidelines (the “Guidelines”).

       The U.S. Probation Office’s presentence investigation report (“PSR”) concluded

that Mr. Gonzalez-Calzadillas’s offense level of 21 (which included the three-level

reduction) and his criminal history category of IV placed his Guidelines range at 57 to 71

months.1 However, the PSR recommended a downward variance to 36 months, a

sentence well below the Guideline minimum, because Mr. Gonzalez-Calzadillas had

never served a prison sentence. The PSR recommendation also fell below the 46-month

sentence available through the District of Colorado’s recently enacted fast-track program

for illegal-reentry defendants who plead guilty. Mr. Gonzalez-Calzadillas declined the

       1
        We have reviewed the PSR’s recommended offense level and criminal history
category for Mr. Gonzalez-Calzadillas and see no error in the calculations.

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fast-track program in favor of the lower sentence recommended by the PSR.

       At Mr. Gonzalez-Calzadillas’s May 2, 2012 sentencing hearing, the Government

objected to the PSR’s recommendation for a variance, citing Mr. Gonzalez-Calzadillas’s

prior DUI convictions and a 2004 conviction for felony menacing. The district court

confirmed the PSR’s calculation of the Guidelines range but rejected both the PSR’s

recommendation of a 36-month sentence and the Government’s request for a sentence of

57 months, the bottom of Mr. Gonzalez-Calzadillas’s calculated Guidelines range. Instead,

the court sentenced Mr. Gonzalez-Calzadillas to 46 months in prison, the sentence that Mr.

Gonzalez-Calzadillas would have received had he opted for the fast-track program.

       Mr. Gonzalez-Calzadillas filed a timely notice of appeal on May 14, 2012. His

counsel filed an Anders brief and a motion to withdraw, finding “no meritorious grounds

on which to attack either Mr. Gonzalez’s conviction or his sentence.” Aplt. Br. at 1. The

Government notified the court that it would not oppose the Anders motion.

       Mr. Gonzalez-Calzadillas was notified of the Anders motion, and he filed a

response listing two reasons why the court should reconsider his sentence: (1) his

counsel was ineffective at the pleading stage for failing to inform him of the immigration

consequences of pleading guilty; and (2) his counsel was ineffective in the sentencing

stage for failing to argue that his previous state sentences were unconstitutional and

therefore should not factor into his advisory Guidelines range.

                                    II. DISCUSSION

       Pursuant to Anders, counsel may “request permission to withdraw where counsel
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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). We “must

then conduct a full examination of the record to determine whether defendant’s claims

are wholly frivolous.” Id. (citing Anders, 386 U.S. at 744). If there are no non-frivolous

issues, we may grant counsel’s motion to withdraw and dismiss the appeal. Id.

       We have conducted a full review of the record and agree with Mr. Gonzalez-

Calzadillas’s counsel that it indicates no non-frivolous issues that may be appealed.

The Anders brief considers a single issue: whether a 46-month sentence is reasonable

when it is below the Guidelines range. We address this issue and then address Mr.

Gonzalez-Calzadillas’s assertion that his counsel was ineffective.

       A. Reasonableness of the Sentence

       “[T]his Court reviews sentences for reasonableness, as informed by the 18 U.S.C.

§ 3553(a) sentencing factors.” United States v. Montgomery, 550 F.3d 1229, 1233 (10th

Cir. 2008); see also Gall v. United States, 552 U.S. 38, 51 (2007). This review consists

of two components: procedural and substantive reasonableness. See id.

              1. Procedural Reasonableness

       We first address whether the district court committed “no significant procedural

error, such as failing to calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately explain the chosen

sentence.” Gall, 552 U.S. at 51. We review a sentence’s procedural reasonableness for
                                             -4-
plain error if the defendant did not object in the district court. United States v. Booker,

543 U.S. 220, 268 (2005); United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir.

2007).

         The district court adequately explained its reasoning for the sentence in open court

and considered both the PSR’s reasons for recommending a downward variance and the

§ 3553(a) factors. Mr. Gonzalez-Calzadillas did not object. Nothing suggests that the

district court’s sentencing was plainly erroneous.

                2. Substantive Reasonableness

         We review a sentence’s substantive reasonableness for abuse of discretion, Gall,

552 U.S. at 51, assessing whether “the length of the sentence is unreasonable given the

totality of the circumstances in light of the 18 U.S.C. § 3553(a) factors.” United States v.

Haley, 529 F.3d 1308, 1311 (10th Cir. 2008).

         The district court reduced Mr. Gonzalez-Calzadillas’s sentence below the

Guidelines range to comply with the District of Colorado’s fast-track program because

Mr. Gonzalez-Calzadillas pled guilty under the program’s terms. When sentences are

within or below the Guidelines, courts may apply a presumption of reasonableness. Rita

v. United States, 551 U.S. 338, 347 (2007); United States v. Balbin-Mesa, 643 F.3d 783,

788 (10th Cir. 2011). We apply that presumption here and see no abuse of discretion in

the substantive reasonableness of the sentence.

         B. Ineffective Assistance of Counsel

         This court has held that “[i]neffective assistance of counsel claims should be
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brought in collateral proceedings, not on direct appeal.” United States v. Galloway, 56

F.3d 1239, 1240 (10th Cir. 1995). Ineffective assistance of counsel claims “brought on

direct appeal are presumptively dismissible, and virtually all will be dismissed.” Id.; see

e.g., United States v. Coleman, 9 F.3d 1480, 1487 (10th Cir. 1993). Mr. Gonzalez-

Calzadillas has made no nonfrivolous argument that his claims should be heard on direct

appeal.

                                   III. CONCLUSION

       We dismiss the appeal and grant counsel’s motion to withdraw.

                                          ENTERED FOR THE COURT



                                          Scott M. Matheson, Jr.
                                          Circuit Judge




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