                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                     June 25, 2013
                     UNITED STATES COURT OF APPEALS
                                                                  Elisabeth A. Shumaker
                                      TENTH CIRCUIT                   Clerk of Court

    UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

        v.                                                No. 13-3047
                                                (D.C. No. 5:12-CR-40109-JAR-1)
    DONALD GENE GARST,                                     (D. Kansas)

              Defendant - Appellant.


                             ORDER AND JUDGMENT*


Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.


        Mr. Donald Gene Garst pleaded guilty to one count of bulk cash smuggling

under 31 U.S.C. § 5332. This count involved Mr. Garst’s concealment of $150,000

in a shipping box and his attempt to send the box from Afghanistan to Kansas without

complying with currency reporting requirements. 1 Accepting the plea, the district




*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. The case is therefore ordered submitted without oral argument. See Fed. R.
App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with Fed. R.
App. P. 32.1 and 10th Cir. R. 32.1.
1
       See 31 U.S.C. § 5316(a)(1)(B) (2006) (requiring individuals to report monetary
transfers into the United States exceeding $10,000).
court sentenced Mr. Garst to 30 months of imprisonment, imposed supervised release

for one year, and fined him $52,117.37.

      Mr. Garst’s appointed counsel, Mr. Stephen Kessler, filed an appeal brief and

motion to withdraw under Anders v. California. 2 Anders allows counsel to request

permission to withdraw after examining the case and determining that any appeal

would be wholly frivolous. 3

      In his Anders brief, Mr. Kessler states that he had been asked by Mr. Garst to

raise two issues on appeal: (1) whether the district court had committed procedural

error by raising the base offense (under the sentencing guidelines) by two levels, 4 and

(2) whether Mr. Garst’s counsel had been ineffective.5 Mr. Kessler concludes that

these grounds for appeal are frivolous. 6

      Mr. Garst responded pro se, agreeing with Mr. Kessler and asking us to dismiss

the appeal. 7 In the response, Mr. Garst concedes that “he cannot say that the district

court was erroneous in its preponderance findings based on the evidence presented

by the government, but not properly rebutted by defense counsel.” 8 He agrees that
2
      Anders v. California, 386 U.S. 738 (1967).
3
      See id. at 744.
4
      See U.S. Sentencing Guidelines Manual § 2S1.3(b)(1) (2009).
5
      Br. of Appellant at 2 (Anders Br.).
6
      Id. at 12.
7
      Appellant’s Resp. to Anders Br. at 2.
8
      Id. at 1.

                                              2
“claims based on ineffective assistance of counsel are generally not raised on appeal,

but [are] more appropriately pursued in a collateral attack pursuant to 28 U.S.C.

§ 2255.” 9

       As required by Anders, we have examined the district court record to “decide

whether the case is wholly frivolous.” 10 Having done so, we conclude that an appeal

would be frivolous. Thus, we grant Mr. Kessler’s motion to withdraw and dismiss the

appeal. The dismissal, however, would permit Mr. Garst to bring his claim of

ineffective assistance of counsel under 28 U.S.C. § 2255. 11



                                          Entered for the Court



                                          Robert E. Bacharach
                                          Circuit Judge




9
       Id. at 2.
10
       Anders, 386 U.S. at 744.
11
       See Massaro v. United States, 538 U.S. 500, 504-06 (2003) (noting that in most cases,
a claim for ineffective assistance of counsel should be brought under 28 U.S.C. § 2255 rather
than on direct appeal).

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