                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 October 10, 2012
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 12-2007
          v.                                          (D. New Mexico)
 CIPRIANO CARDENAS-URIARTE,                   (D.C. No. 1:10-CR-01563-JAP-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in 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.

      Defendant and appellant, Cipriano Cardenas-Uriarte, seeks to appeal his

conviction following his plea of guilty to several counts of distribution of


      *
       This order and judgment is not binding precedent, except under the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. 32.1.
methamphetamine. His appointed counsel, Edward O. Bustamonte, has filed an

Anders brief and has moved to withdraw as counsel. See Anders v. California,

386 U.S. 738 (1967). Mr. Cardenas-Uriarte has filed a pro se response to that

brief, and the government has declined to file a brief. We therefore base our

conclusion on counsel’s brief and Mr. Cardenas-Uriarte’s response, as well as our

own careful review of the record. For the reasons set forth below, we agree with

Mr. Bustamonte 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

      In a series of controlled purchases between March and November 2009,

involving Mr. Cardenas-Uriarte and confidential informants, Mr. Cardenas-

Uriarte distributed a total of 321.5 grams of a substance containing

methamphetamine, of which 174.9 grams was actual methamphetamine. He was

arrested and ultimately pled guilty to four counts of distribution of fifty grams

and more of methamphetamine and two counts of distribution of less than fifty

grams of methamphetamine, in violation of 21 U.S.C. § 841(b)(1)(B) & (C). The

district court sentenced Mr. Cardenas-Uriarte to 120 months’ imprisonment,

followed by five years of supervised release. The 120-month sentence was thirty-

one months below the advisory sentence range calculated under the United States

Sentencing Commission, Guidelines Manual (“USSG”).

                                         -2-
      Mr. Cardenas-Uriarte’s appointed counsel filed this appeal. As indicated,

that counsel has moved to withdraw as counsel pursuant to Anders.



                                  DISCUSSION

      In Anders, the Supreme Court held that if a defendant’s counsel “finds [the

defendant’s] case to be wholly frivolous, after a conscientious examination of it,

he should so advise the court and request permission to withdraw.” Anders, 386

U.S. at 744. Counsel must submit to both the court and his client a “brief

referring to anything in the record that might arguably support the appeal.” Id.

The defendant may then “raise any points that he chooses.” Id.

      The reviewing court must examine all the proceedings to determine whether

the appeal is frivolous. Id. If the court so finds, it may grant defense counsel’s

request to withdraw and dismiss the appeal. Id. “On the other hand, if it finds

any of the legal points arguable on their merits (and therefore not frivolous) [the

reviewing court] must, prior to decision, afford the indigent [defendant] the

assistance of counsel to argue the appeal.” Id.

      Mr. Cardenas-Uriarte pled guilty without the benefit of a plea agreement.

At the plea hearing, the following exchanges occurred:

      THE COURT: Are you under the care of a doctor today?

      THE DEFENDANT: Yes.

      THE COURT: Are you taking medicine?

                                         -3-
THE DEFENDANT: Yes.

THE COURT: What kind of medicine?

THE DEFENDANT: Diabetes medication, high blood pressure,
high cholesterol, and depression.

THE COURT: All right. Now, do those medicines and the
treatment interfere with your ability to understand the case and
understand what Mr. Bustamonte is telling you about the case?

THE DEFENDANT: No, not at all.

THE COURT: All right. You feel okay?

THE DEFENDANT: I didn’t take any medications today because I
wanted to make sure that we could take care of this paperwork.

THE COURT: All right. So because of that you feel all right,
you’re clearheaded, and you understand what’s going on?

THE DEFENDANT: Yes.

THE COURT: Are you satisfied with your lawyer?

THE DEFENDANT: Yes.

THE COURT: And Mr. Bustamonte, do you think your client’s
competent to enter a plea?

MR. BUSTAMONTE: He is, Judge.

                                ....

THE COURT: “[Y]ou want to proceed today without a plea
agreement and face whatever penalty is imposed, is that right?

THE DEFENDANT: Yes.

THE COURT: Now, Mr. Bustamonte has explained the sentencing
guidelines to you, hasn’t he?

                                  -4-
      THE DEFENDANT: Yes.

Tr. of Plea Hr’g at 4-5, 7; R. Vol. 3 at 4-5, 7.

      Mr. Bustamonte suggests that one “possible issue” for appeal is “whether

the trial counsel inadequately and ineffectively represented Mr. Cardenas-

Uriarte.” Appellant’s Br. at 4. We have stated that “[i]neffective assistance of

counsel claims should be brought in collateral proceedings, not on direct appeal.

Such claims brought on direct appeal are presumptively dismissible, and virtually

all will be dismissed.” United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir.

1995) (en banc). “[E]ven if the record appears to need no further development,

the claim should still be presented first to the district court in collateral

proceedings . . . so the reviewing court can have the benefit of the district court’s

views.” Id. We see no reason to depart from that general rule in this case.

      In his pro se submission, Mr. Cardenas-Uriarte argues that there is a

“question [whether] Appellant was in a competent state of mind to take a plea of

guilty on June 2, 2011.” 8/10/12 Pleading at 2. He further questions “[w]hether

the requirements for a guilty plea were met under Fed. R. Crim. P. 11 . . .

[including] [a]dvising and [q]uestioning the Defendant [under] Rule 11(b)(1) . . .

[and] [e]nsuring that [p]lea [wa]s [v]oluntary [under] Rule (b)(2).” Id.

Mr. Cardenas-Uriarte cites the testimony relating to his medications in the plea

hearing to support his claim that he was not mentally competent to plead guilty.




                                           -5-
      “Rule [11] requires the court to accept a guilty plea only after engaging in

an extensive colloquy advising the defendant of his rights and questioning the

defendant to be sure he understands those rights and is entering the plea

voluntarily.” United States v. Villa-Vazquez, 536 F.3d 1189, 1199 (10th Cir.

2008). Mr. Cardenas-Uriarte argues that his “statement that he [Mr. Cardenas-

Uriarte] did not take his medicine on the date of the hearing; [p]articularly. the

medicine for his depression, should have brought awareness to the court that [he]

was in no mental capacity to [m]ake a decision o[n] a plea.” 8/10/12 Pleading at

3. We disagree. Mr. Cardenas-Uriarte specifically declined to take his

medications so that he would be able to accept a plea. The colloquy between the

court and Mr. Cardenas-Uriarte provides no basis for thinking that he was in any

way impaired or unable to understand what he was doing. His argument would

permit defendants on medication to circumvent the requirements for a valid guilty

plea, by refusing to take their medications and then blaming their “involuntary”

guilty plea on the failure to take those medications. He points to no other claimed

inadequacies in the colloquy to support his argument and we can see none.

      We discern no other basis upon which to question the validity and

reasonableness of Mr. Cardenas-Uriarte’s conviction and sentence.




                                          -6-
                                CONCLUSION

      We agree with Mr. Bustamonte that no meritorious basis exists for

Mr. Cardenas-Uriarte to appeal either his conviction or sentence. We therefore

GRANT counsel’s motion to withdraw and DISMISS this matter.

                                             ENTERED FOR THE COURT


                                             Stephen H. Anderson
                                             Circuit Judge




                                       -7-
