                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  April 22, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                  Clerk of Court
                            FOR THE TENTH CIRCUIT




    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                  No. 08-3242
                                              (D.C. No. 2:07-CR-20156-CM-1)
    JORGE MARMOLEJO RAYAS,                                (D. Kan.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before O’BRIEN, Circuit Judge, BRORBY, Senior Circuit Judge, and
GORSUCH, Circuit Judge.



         Jorge Marmolejo Rayas was found guilty by a jury on one count of illegal

re-entry by an alien who had previously been deported subsequent to conviction

of an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). Mr. Rayas




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
was sentenced to a term of imprisonment of ninety-two months followed by two

years’ supervised release.

      On appeal, Mr. Rayas’s counsel filed an Anders brief and moved to

withdraw as counsel. See Anders v. California, 386 U.S. 738 (1967). Mr. Rayas

subsequently filed a letter with this court, which we construe as his response

brief. See Bear v. Patton, 451 F.3d 639, 641 (10th Cir. 2006); see also Van

Deelen v. Johnson, 497 F.3d 1151, 1153 n. 1 (10th Cir. 2007) (Court filings

prepared pro se are “entitled to a solicitous construction.”). In his letter,

Mr. Rayas argues that the aggravated felony used in calculating his criminal

history score should not have been considered because it occurred when he was a

juvenile and was based on hearsay. He further maintains that he received

ineffective assistance of counsel. For the reasons set forth below, we discern no

meritorious issues for appeal, and we therefore grant the motion to withdraw and

dismiss the appeal.

      The Presentence Report (PSR) indicates that Mr. Rayas was arrested on

September 20, 1992, charged with aggravated assault, and eventually sentenced to

a term of imprisonment of two to six years. R. Vol. III at 5. The PSR indicates

that, although Mr. Rayas claimed to be eighteen at the time, he was actually

sixteen and a juvenile. Mr. Rayas did not offer any objections or changes to the

PSR. Id. Vol. II, doc. 2 at 4.




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      The advisory sentencing guidelines provide that three criminal history

points be added when “the defendant was convicted as an adult and received a

sentence of imprisonment exceeding one year and one month.” U.S.S.G.

§ 4A1.2(d)(1); see also United States v. McNeil, 90 F.3d 298, 299-300 (8th Cir.

1996) (affirming use of prior conviction by youthful offender under eighteen

years of age where defendant was convicted as an adult and sentenced to three

years in prison). It is undisputed that Mr. Rayas was convicted as an adult and

sentenced to a term of two to six years’ imprisonment. There was thus no error in

the district court’s reliance on the aggravated assault conviction in determining

Mr. Rayas’s present sentence.

      Mr. Rayas’s second claim is that he wanted to testify but was prevented

from doing so by his attorney. We find that it would be inappropriate at this time

for us to consider this claim of ineffective assistance of counsel. As the Supreme

Court has explained, “[w]hen an ineffective-assistance claim is brought on direct

appeal, appellate counsel and the court must proceed on a trial record not

developed precisely for the object of litigating or preserving the claim and thus

often incomplete or inadequate for this purpose.” Massaro v. United States,

538 U.S. 500, 504-05 (2003). As such, we have held that the “vast majority of

ineffective assistance of counsel claims should be brought in collateral

proceedings rather than on direct appeal from a conviction.” United States v.

Brooks, 438 F.3d 1231, 1242 (10th Cir. 2006); see also United States v.

                                         -3-
Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). The claim here

presents no exception. Indeed, we are confronted with the exact circumstances

under which ineffective assistance claims should be dismissed, for we have before

us neither a record that is sufficiently developed for the purpose of litigating such

a claim nor an opinion of the district court on the issue. We therefore dismiss

Mr. Rayas’s ineffective assistance claim without prejudice to subsequent efforts

to raise it in collateral proceedings under 28 U.S.C. § 2255, and we also deny as

moot his request for appointment of new counsel.

      After reviewing the record on appeal, we see no meritorious issues for

appeal. We therefore dismiss Mr. Rayas’s appeal and grant counsel’s motion to

withdraw.


                                                     Entered for the Court



                                                     Neil M. Gorsuch
                                                     Circuit Judge




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