                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          APR 19 2005

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 04-1337
 v.                                              (D.C. No. 03-CR-561-RB)
                                                        (Colorado)
 LEROY HAYNES,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Leroy Haynes was found guilty of one count of bank fraud and aiding and

abetting the same in violation of 18 U.S.C. § 1344 and § 2. As determined by the

jury beyond a reasonable doubt, Mr. Haynes’ offense involved an intended loss




      *
       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judgment is not binding precedent, except under the doctrines of law of the case,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.
amount of $79,800. Based on a total offense level of twelve 1 and a criminal

history category of I, Mr. Haynes’ guidelines sentence range was ten to sixteen

months incarceration. The district court sentenced Mr. Haynes at the bottom of

that range to a ten-month term and, pursuant to U.S.S.G. § 1A1.1, imposed one

half of his sentence to be served in the form of prison confinement and the

remainder of his term to be served via in-home detention, followed by three years

of supervised release. Mr. Haynes’ counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), and moved for leave to withdraw as counsel.

For the reasons set out below, we deny counsel’s motion to withdraw and remand

the case to the district court for resentencing.

      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


      1
        Mr. Haynes’ conviction resulted in a base offense level of six. Pursuant to
the jury’s finding beyond a reasonable doubt that Mr. Haynes’ actions involved an
intended loss amount of $79,800, the district court increased his base offense
level by six levels, resulting in a total offense level of twelve. Rec., vol. VI, at
28.

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the appeal. Id. at 744. Pursuant to Anders, counsel has provided Mr. Haynes with

a copy of his appellate brief and Mr. Haynes was given an opportunity to respond,

which he did by filing a pro se reply brief raising two issues.

      Mr. Haynes first complains that he was denied his Sixth Amendment right

to effective assistance of counsel. This court has repeatedly stated that

ineffective assistance of trial counsel claims should be brought in collateral

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.; see also United States v.

Coleman, 9 F.3d 1480, 1487 (10th Cir. 1993). Mr. Haynes 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. Galloway, 56 F.3d at 1240.

      Mr. Haynes next contends that his sentence was imposed in violation of

Blakely v. Washington, 124 S. Ct. 2531 (2004). In Blakely, the Supreme Court

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

Washington state’s determinate sentencing regime. See 124 S. Ct. at 2536.

Recently, the Court applied the rule of Apprendi and Blakely 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


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

doubt.” United States v. Booker, 125 S. Ct. 738, 756 (2005). To remedy the

guidelines’ Sixth Amendment problem, the Court severed and excised 18 U.S.C. §

3553(b)(1), invalidating their mandatory application. 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.

Haynes’ sentence, the district court did not rely upon judge-found facts, but it did

apply the then-mandatory federal sentencing guidelines. We must therefore

evaluate Mr. Haynes’ sentence in light of the Booker remedy.

      Because Mr. Haynes raised Blakely in the district court, he properly

preserved his non-constitutional Booker claim and we review it for harmless

error. See United States v. Labastida-Segura, 396 F.3d 1140, 1142 (10th Cir.

2005). According to Federal Rule of Criminal Procedure 52(a), “[a]ny error,

defect, irregularity, or variance that does not affect substantial rights must be

disregarded” on harmless error review. F ED . R. C RIM . P. 52(a). In the instant

case, the district court sentenced Mr. Haynes under sentencing guidelines it

viewed as mandatory. The court also exercised its discretion to sentence Mr.

Haynes at the bottom of his applicable guidelines range. We have held that where

non-constitutional Booker error was properly preserved and the defendant was


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sentenced at the bottom of his guidelines range, we cannot conclude the error was

harmless:

      Here, where it was already at the bottom of the guidelines range, to say that
      the district court would have imposed the same sentence given the new
      legal landscape (even after consulting the Sentencing Guidelines in an
      advisory capacity) places us in the zone of speculation and conjecture--we
      simply do not know what the district court would have done after hearing
      from the parties. Though an appellate court may judge whether a district
      court exercised its discretion (and whether it abused that discretion), it
      cannot exercise the district court’s discretion.

Labastida-Segura, 396 F.3d at 1143 (citation omitted). Similarly here, we cannot

say that Mr. Haynes’ non-constitutional Booker error did not affect the district

court's selection of the sentence imposed. As a result, we DENY counsel’s

motion to withdraw and REMAND the case to the district court for resentencing

consistent with this opinion.

                                       ENTERED FOR THE COURT

                                       Stephanie K. Seymour
                                       Circuit Judge




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