                                                                               F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                             February 1, 2007
                                    TENTH CIRCUIT                          Elisabeth A. Shumaker
                                                                               Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                            No. 06-2222
                                                         (D.C. No. CR-06-394 JP)
 JOSE OLIVAS-MONTOYA,                                           (D. N.M.)

           Defendant-Appellant.



                                 ORDER AND JUDGMENT *


Before McWILLIAMS, Senior Circuit Judge, ANDERSON, Senior Circuit Judge, and
BRORBY, Senior Circuit Judge.




       Jose Olivas-Montoya (the defendant), an alien, was charged in a criminal

information filed February 23, 2006, in the United States District Court for the District of

New Mexico, with having being found in Eddy County, New Mexico, after he had been

legally deported from the United States on January 4, 2005, which deportation was based

on a felony conviction in the United States for residential burglary, all in violation of 8




       *
        This order and judgment is not binding precedent, except under the doctrines of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. 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.
U.S.C.§ 1326 (a)(1) and (2) and (b)(2). Defendant was represented in the district court by

appointed counsel, who also represents defendant in this court.

       On February 23, 2006, the defendant pled guilty as charged in the information.

The matter was then referred to the Probation Department for a Pre-Sentence Report

(PSR). The PSR set the defendant’s base offense level at 8 levels, which was then

increased by 16 levels based on an aggravated felony committed prior to his deportation,

and was then reduced by three levels based on defendant’s acceptance of responsibility,

resulting in an adjusted offense level of 21. The PSR set defendant’s criminal history

category at V. An offense level of 21, coupled with a criminal history category of V, set

defendant’s guideline range at imprisonment for 70-87 months.

       Defendant’s attorney filed objections to the PSR’s recommendation that

defendant’s criminal history category be set at V. Specifically, counsel for the defendant

filed the following objection:

       Issue 1: Defense counsel states that criminal history category V as reflected
       in the original presentence report, over-represents the seriousness of the
       defendant’s criminal history or the likelihood that he will commit further
       crimes. Defense counsel states a criminal history category III would more
       accurately represent the defendant’s criminal history category.

       In his objection counsel also asked that defendant be given a “more reasonable

sentence.” The government filed a response to defendantt’s objection that his criminal

history category was “overstated,” and should have been set at III, stating it “opposed any

variance from the advisory guideline sentencing range.” The record indicates that at

sentencing the district court followed the recommendation of the PSR and set defendant’s

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criminal history category at V, which, as stated, when coupled with an adjusted offense

level of 21, fixed the guideline range at 70-87 months imprisonment. In this setting, the

district court sentenced defendant to imprisonment of 70 months. The defendant though

counsel then filed a timely notice of appeal.

       On appeal, counsel for defendant filed an Anders brief in which he stated that in

sentencing defendant to incarceration for 70 months, the district court had not acted

contrary to the sentencing guidelines and that the appeal should be dismissed and he

should be allowed to withdraw. Anders v. California, 386 U.S. 738 (1967). A copy of

counsel’s brief was served on the defendant. In response, the defendant on October 27,

2006, filed a pro se brief in which he stated his counsel was “completely constitutionally

deficient,” that his “assistance and services” were “ineffective,” and asked that “another

counsel” be appointed. On November 16, 2006, the government filed a Notice of Intent

Not to File a Response Brief, which was also served on the defendant.

       The PSR indicated that defendant had an extensive criminal history, consisting of

some 30 arrests and convictions, and some 16 arrests for which there was no ensuing

conviction. Many of these arrests, whether they resulted in convictions or not, occurred

when defendant was a juvenile.

       In calculating the defendant’s criminal history category, as we read it, the PSR did

not recommend any points pursuant to U.S.S.G. § 4A1.1(a). It did recommend a total of

six points for three offenses pursuant to U.S.S.G. § 4A1.1(b). Those were as follows:

              (1) Two points for possession in 1996 of heroin resulting in 18 months’

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              imprisonment;

              (2) Two points for shoplifting in 1996 resulting in a sentence of 60 days in

              jail; and

              (3) Possession of drug paraphernalia in 1998 resulting in 60 days in jail.



       The foregoing would result in six points for the purpose of determining

defendant’s criminal history category.

       Additionally, under U.S.S.G. § 4A1.1(c), the PSR recommended four additional

points, making a total of ten points, for seven other offenses and convictions. Those were

as follows:

              (1) Receiving stolen property in 1997 resulting in a suspended 180 day jail

              sentence;

              (2) Trespass in 1999 resulting in a suspended jail sentence;

              (3) Drunk Driving in 2001 resulting in a suspended jail sentence;

              (4) Shoplifting in June 2002 resulting in a suspended jail sentence;

              (5) Shoplifting in December 2002 resulting in a suspended jail sentence;

              (6) A residential burglary in 2003 resulting in a sentence of three years,

              which sentence was suspended and defendant was put on three years

              probation; and

              (7) Shoplifting in August 2003, resulting in a suspended sentence.

       As we understand it, defendant contends that his criminal history category should

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have been set at III, based on six criminal history points, and not V, which required 10

criminal history points. U.S.S.G. Ch. 5, Pt. A.

         As indicated, counsel for the defendant has filed in this court a brief pursuant to

Anders v California, 386 U.S. 738 (1967), stating that in sentencing defendant, the district

court committed no error and that accordingly this court has no jurisdiction, and that the

appeal should be dismissed and he should be able to withdraw as counsel of record. We

agree.

                In Anders, supra, the Supreme Court spoke as follows:

                . . . if counsel finds his case to be wholly frivolous, after a
                conscientious examination of it, he should advise the court
                and request permission to withdraw. That request must,
                however, be accompanied by a brief referring to anything in
                the record that might arguably support the appeal. A copy of
                counsel’s brief should be furnished the indigent and time
                allowed him to raise any points that he chooses; the court--not
                counsel–then proceeds, after a full examination of all the
                proceedings, to decide whether the case is wholly frivolous.
                If it so finds it may grant counsel’s request to withdraw and
                dismiss the appeal insofar as federal requirements are
                concerned, or proceed to a decision on the merits, if state law
                so requires.

         Id. at 744.

         Pursuant to our reading of Anders, supra, in United States v. Snitz, 342 F.3d 1154,

1157 (10th Cir. 2003), we spoke as follows:

                The basic principle underlying the cited cases is that, aside
                from when an defendant elects to proceed pro se, every direct
                criminal appeal must be briefed on the merits by counsel and
                decided accordingly by the court unless, after a thorough
                review of all pertinent proceedings, the appeal is determined

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              initially by counsel and then independently by the court to be
              wholly frivolous. See generally Smith v. Robbins, 528 U.S.
              259, 279-80 (discussing and applying Court’s present
              understanding of its ‘chief cases in this area,’ including
              Anders, Penson, and McCoy.

       In that same case, at 1158, citing McCoy v. Court of Appeals of Wisc. Dist.

1, 486 U.S. 429, 438-39 (1988), we then spoke as follows:

              As for the professional responsibilities of counsel, the
              appellate lawyer must master the trial record, thoroughly
              research the law, and exercise judgment in identifying the
              arguments that may be advanced on appeal. . . . Only after
              such an evaluation has led counsel to the conclusion that the
              appeal is ‘wholly frivolous’ is counsel justified in making a
              motion to withdraw. This is the central teaching of Anders.

McCoy, 486 U.S. at 438-39.

       And finally, in Snitz at 1158, we then spoke as follows:

              The court’s obligation does not end once it concludes that counsel
              reviewed the record and found no error. Because it is ‘the court-not
              counsel’ that ultimately ‘decides whether the case is wholly
              frivolous,’ Anders, 386 U.S. at 744, counsel’s assessment triggers the
              final responsibility of the court, which must ‘itself conduct a full
              examination of all the proceeding[s] to decide whether the case is
              wholly frivolous.’ Penson v. Ohio, 488 U.S. 75, 80 (1988) (quoting
              Anders, 386 U.S. at 744).

       We conclude that in the instant case, counsel for the defendant has followed the

teaching of Snitz. Discharging our responsibility under Snitz, based on a full examination

of the record before us, and a consideration of the Anders brief filed by counsel, we

conclude that there are no non-frivolous issues upon which the defendant has a basis for

appeal. United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005).



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       In his pro se brief, the defendant suggests that his appointed counsel’s

representation in the district court was “constitutionally deficient” and “ineffective.” In

this respect, it is well established, however, that the issue of ineffective trial counsel

cannot be raised on direct appeal, and can only be raised in a collateral proceeding. See

United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995). In that case we stated

that ineffective assistance of counsel claims should be brought in collateral proceedings,

not on direct appeal. The reason for the rule is so that a “factual record” may then be

fully developed.

       Accordingly, defendant’s request for the appointment of “different counsel” is

denied. The appeal is hereby dismissed and counsel’s motion to withdraw is granted.



                                                    Entered for the Court


                                                    Robert H. McWilliams
                                                    Circuit Judge




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