                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                     August 16, 2006
                      UNITED STATES CO URT O F APPEALS
                                                                   Elisabeth A. Shumaker
                                  TENTH CIRCUIT                        Clerk of Court



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

          Plaintiff – Appellee,
 v.                                                     No. 05-2307
                                                 (D.C. No. 04-CR-2520-RB)
 JOSE M ARTINEZ-M AY, aka Enrique                        (D . N.M .)
 M artinez,

          Defendant–Appellant.



                             OR DER AND JUDGM ENT *


Before KELLY, M cKA Y, and LUCERO, Circuit Judges.


      Having pled guilty to Reentry of a Deported Alien Previously Convicted of

an Aggravated Felony in violation of 8 U.S.C. § 1326(a)(1) and (2), and 8 U.S.C.

§ 1326(b)(2), Jose M artinez-M ay now appeals his conviction and sentence. W e

exercise jurisdiction pursuant to 28 U.S.C. § 1291, AFFIRM the conviction, and

DISM ISS the claim of ineffective assistance of counsel.




      *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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. 36.3.
      In December 2004 M artinez-M ay was indicted for Reentry of a Deported

Alien Previously Convicted of an Aggravated Felony in violation of 8 U.S.C.

§ 1326(a)(1) and (2), and 8 U.S.C. § 1326(b)(2). He initially entered into a plea

agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), and pled

guilty. The government recommended a sentencing range of 63 to 78 months’

imprisonment, based on an offense level of 19 and a criminal history category of

VI. At the sentencing hearing, however, M artinez-M ay filed a motion to rescind

the plea agreement, or, in the alternative, to withdraw his plea of guilty. After

holding a brief hearing, the district court allowed M artinez-M ay to withdraw from

the plea agreement, and M artinez-M ay again chose to plead guilty. The district

court calculated M artinez-M ay’s base offense level to be 21 with a criminal

history category of VI, but determined that M artinez-M ay should receive a two-

level downward departure based on his personal circumstances and sentenced him

to 63 months’ imprisonment, at the bottom of the guidelines range.

      On appeal, counsel for M artinez-M ay has filed an Anders brief and moves

to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738, 744

(1967) (allowing counsel who determines that any appeal would be wholly

frivolous to advise the court of that fact, seek to withdraw as counsel, and submit

a brief to the court referring to portions of the record that arguably support an

appeal). In the Anders brief, counsel states that he cannot identify a non-




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frivolous argument that M artinez-M ay’s guilty plea was invalid or that his

sentence was unlaw ful.

        As is his right, M artinez-M ay filed a response to the Anders brief, raising

solely a claim of ineffective assistance of counsel. W e have previously held that

“[i]neffective assistance of counsel claims should be brought in collateral

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

1240 (10th Cir. 1995) (en banc). There is no reason to depart from that general

rule.

        After careful consideration of the record, we conclude that this appeal is

meritless. Accordingly, M artinez-M ay’s conviction is AFFIRM ED, the claim of

ineffective assistance of counsel is DISM ISSED, and counsel’s motion to

withdraw is GR ANTED.


                                                      Entered for the Court


                                                      Carlos F. Lucero
                                                      Circuit Judge




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