                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       August 27, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                            __________________________                  Clerk of Court

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

          Plaintiff-Appellee,
                                                         No. 06-8126
 v.                                                (D.Ct. No. 06-CR-23-D)
                                                          (D . W yo.)
 SILV ESTR E LO PEZ M U LG A DO,

          Defendant-Appellant.
                        ____________________________

                                OR D ER AND JUDGM ENT *


Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior
Circuit Judges.




      After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



      Appellant Silvestre Lopez M ulgado pled guilty to one count of possession



      *
         This order and judgment is not binding precedent except under the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.
with intent to distribute 500 grams or more of methamphetamine, a Schedule II

controlled substance, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). The

district court sentenced M r. M ulgado to 135 months imprisonment and five years

supervised release. Although M r. M ulgado appeals his conviction and sentence,

his attorney has filed an Anders brief and motion to withdraw as counsel. See

Anders v. California, 386 U.S. 738, 744 (1967). For the reasons set forth

hereafter, w e grant counsel’s motion to withdraw and dismiss this appeal. Id.



                                   I. Background

       On September 3, 2003, M r. M ulgado was driving on Interstate 80, east of

Cheyenne, W yoming, when he was pulled over by a state trooper. A consensual

encounter occurred which ultimately led to a search of M r. M ulgado’s vehicle

after the trooper noticed a number of irregularities causing him to suspect drugs

or other contraband were in the fuel tank. As a result of the search, authorities

found a significant amount of methamphetamine wrapped in plastic in the fuel

tank. D uring the search M r. M ulgado fled, and he was not found until over two

years later.



       M r. M ulgado pled guilty to a one-count indictment of possession with

intent to distribute 500 grams or more of methamphetamine, a Schedule II

controlled substance, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). A

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transcript of his plea hearing held September 11, 2006, establishes M r. M ulgado

was fully advised of his rights as w ell as the consequences of changing his plea to

guilty, which he indicated he understood and that his plea was entered into

knowingly, intelligently, and voluntarily. He also admitted and stipulated to the

facts supporting the charge against him, including the amount of drugs seized.



      After M r. M ulgado pled guilty to possession with intent to distribute 500

grams or more of methamphetamine, a probation officer prepared a presentence

report calculating his sentence under the applicable United States Sentencing

Guidelines (“Guidelines”). M r. M ulgado did not file any objections to the

presentence report. Relying on the presentence report recommendations and the

facts stipulated to by M r. M ulgado, including the total drug amount, the district

court set his total offense level at 32 and his criminal history level at II, for a

Guidelines sentencing range of 135 to 168 months imprisonment. After

considering the factors set forth in 18 U.S.C. § 3553(a), the district court

sentenced M r. M ulgado to the low end of the sentencing range to 135 months

imprisonment and five years supervised release. Prior to imposing the sentence,

M r. M ulgado gave a statement indicating his remorse in committing the instant

crime and explaining he committed the crime to make money to help his family.



      After M r. M ulgado filed a timely notice of appeal, his appointed counsel

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filed an Anders appeal brief, explaining counsel had reviewed the record and

relevant case law and determined the appeal to be wholly frivolous; he then

moved for an order permitting his withdrawal as counsel. See Anders, 386 U.S. at

744. In support, M r. M ulgado’s counsel pointed out M r. M ulgado’s guilty plea

was knowing, intelligent, and voluntary, and the district court sentenced M r.

M ulgado at the low end of the applicable Guidelines range, making his sentence

presumptively reasonable. Pursuant to Anders, this court gave M r. M ulgado an

opportunity to respond to his counsel’s Anders brief. Id. M r. M ulgado filed a

response.



      In his pro se response, M r. M ulgado raises one issue, claiming his defense

counsel was ineffective in failing to file a motion to suppress the evidence

obtained from the illegal search and seizure involving his vehicle. In so doing, he

recounts his version of the facts involving the search and seizure of the drugs by

the state trooper. He suggests that if his defense counsel had moved to suppress

the evidence obtained during that search and seizure, the trial court would have

excluded the incriminating evidence against him and acquitted him of

methamphetamine possession. As a result, he contends his counsel’s performance

was deficient, prejudicial, and resulted in unsound trial strategy.




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                                   II. Discussion

      As required by Anders, we have conducted a full examination of the record

before us. See 386 U .S. at 744. Turning first to M r. M ulgado’s pro se assertion

his defense counsel was ineffective, we have long held that ineffective assistance

of counsel claims should be brought in collateral proceedings, and not on direct

appeal. See United States v. Calderon, 428 F.3d 928, 931 (10th Cir. 2005). W e

have further held “‘[s]uch claims brought on direct appeal are presumptively

dismissible, and virtually all will be dismissed.’” Id. (quoting United States v.

Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995)). As a result, we decline to

consider M r. M ulgado’s ineffective assistance of counsel claim on direct appeal.

See Massaro v. United States, 538 U .S. 500, 504 (2003) (“[I]n most cases a

motion brought under § 2255 is preferable to direct appeal for deciding claims of

ineffective assistance.”).



      Next, with regard to M r. M ulgado’s guilty plea, our independent review of

the plea hearing transcript supports beyond any doubt our conclusion that he

knowingly, intelligently, and voluntarily entered his plea of guilty. Thus, based

on the record before us, we cannot say M r. M ulgado’s guilty plea w as involuntary

for the purpose of challenging his conviction.



      As to his sentence of 135 months imprisonment and five years supervised

                                         -5-
release, we review for reasonableness the sentence’s length, as guided by the

factors in 18 U.S.C. § 3553(a). See United States v. Kristl, 437 F.3d 1050, 1053

(10th Cir. 2006) (per curiam). Having made such a review, we find no

nonfrivolous basis for challenging the sentence imposed. The district court in this

case explicitly considered the factors in § 3553(a), and a presumption of

reasonableness attaches to a sentence, like here, which is within the correctly-

calculated Guidelines range, which M r. M ulgado has not rebutted. See id. at

1053-55. In addition, M r. M ulgado has not provided any argument challenging

his five-year term of supervised release, and our review of the record does not

indicate such a term is unreasonable under the circumstances presented.



                                  III. Conclusion

      For these reasons, no meritorious appellate issue exists. Accordingly, w e

grant counsel’s motion to withdraw and DISM ISS M r. M ulgado’s appeal. W e

further D EN Y M r. M ulgado’s motion for appointment of counsel on similar

grounds.


                                       Entered by the C ourt:

                                       W ADE BRO RBY
                                       United States Circuit Judge




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