                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            JAN 11 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 99-4078
                                                      (D.C. No. 99-CR-32)
    LEOBARDO SILVA-SOLORZANO,                              (D. Utah)
    a/k/a Sergio Escolontez-Silva,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, McKAY, and PORFILIO, Circuit Judges.




         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      This order and judgment is not binding precedent, except under the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. 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.
      Leobardo Silva-Solorzano (Silva), a Mexican national, appeals the sentence

imposed upon his pleading guilty to illegally entering the United States after

deportation, in violation of 8 U.S.C. § 1326. Finding no error, we affirm the

sentence.

       Silva, whose extensive criminal history includes an April 10, 1995

conviction for possession of a controlled substance, had been deported to Mexico

on at least four occasions, with the latest occurring on June 9, 1997. On

January 27, 1999, the government charged Silva with unlawful reentry of a

deported alien and, pursuant to 8 U.S.C. § 1326(b)(2), filed a Notice of

Sentencing Enhancement due to conviction of at least one prior aggravated

felony. 1 Upon Silva’s entry of a guilty plea, the district court sentenced him to


1
      Section 1326 provides, in pertinent part,

      (a) In general

      Subject to subsection (b) of this section, any alien who--

       (1) has been denied admission, excluded, deported, or removed or
      has departed the United States while an order of exclusion,
      deportation, or removal is outstanding, and thereafter

      (2) enters, attempts to enter, or is at any time found in, the United
      States, . . .

      shall be fined under Title 18, or imprisoned not more than 2 years, or
      both.

                                                                       (continued...)

                                         -2-
seventy months in prison followed by thirty-six months of supervised release.

The imposed term of imprisonment is at the low end of the applicable guideline

range, calculated with a sixteen-level enhancement based on a prior conviction for

an aggravated felony. See U.S.S.G. § 2L1.2(b)(1)(A). 2

         On appeal, Silva’s appointed attorney submitted a brief pursuant to Anders

v. California, 386 U.S. 738 (1967), and moved for leave to withdraw from the

case. Silva filed a pro se response to counsel’s brief. These two filings, taken

1
    (...continued)
          (b) Criminal penalties for reentry of certain removed aliens

          Notwithstanding subsection (a) of this section, in the case of any
         alien described in such subsection--
          ...
          (2) whose removal was subsequent to a conviction for commission
         of an aggravated felony, such alien shall be fined under such Title,
         imprisoned not more than 20 years, or both. . . .

      A felony conviction for possession of a controlled substance is an
aggravated felony within the meaning of § 1326(b)(2).  See United States v.
Valenzuela-Escalante , 130 F.3d 944, 946 (10th Cir. 1997).
2
         U.S.S.G. § 2L1.2(b)(1)(A) provides:

          (b) Specific Offense Characteristic

           (1) If the defendant previously was deported after a criminal
         conviction, or if the defendant unlawfully remained in the United
         States following a removal order issued after a criminal conviction,
         increase as follows (if more than one applies, use the greater):

           (A) If the conviction was for an aggravated felony, increase by 16
         levels.


                                            -3-
together, make three arguments: (1) § 1326 and U.S.S.G. § 2L1.2(b)(1)(A) are

unconstitutional; (2) a downward departure for family circumstances was

warranted; and (3) appointed counsel failed to advise Silva of the availability of

downward departure and neglected to contest the prior offenses used to calculate

his criminal history points.

      Silva’s argument against § 1326 and U.S.S.G. § 2L1.2(b)(1)(A) invokes a

blend of constitutional provisions. He asserts that the statute and guideline

violate his right to equal protection, subject him to double jeopardy, and deny him

the right to be free from cruel and unusual punishment. We review constitutional

challenges to immigration provisions de novo. See Jurado-Gutierrez v. Greene,

190 F.3d 1135, 1152 (10th Cir. 1999). We must keep in mind, however, “the

limited scope of judicial inquiry into immigration legislation.” Fiallo v. Bell, 430

U.S. 787, 792 (1977). “[I]n the exercise of its broad power over immigration and

naturalization, Congress regularly makes rules that would be unacceptable if

applied to citizens.” Id. (quotation and footnote omitted).

      In essence, Silva’s equal protection argument is that enhancing the sentence

of re-entering aliens with prior felony convictions makes an irrational distinction

between these aliens and citizens with prior felony convictions. We disagree.

The policy of deterring aliens who have been convicted of a felony from re-

entering the United States justifies distinguishing between the two groups of


                                         -4-
criminal defendants. See United States v. Adeleke, 968 F.2d 1159, 1160-61 (11th

Cir. 1992). Because there is “a rational basis for differentiation,” Jurado-

Gutierrez, 190 F.3d at 1152, § 1326 does not violate Silva’s equal protection

rights. Moreover, the accompanying guideline, U.S.S.G. 2L1.2(b)(1)(A), “treat[s]

all persons with aggravated felonies who commit this crime equally.” United

States v. Cardenas-Alvarez, 987 F.2d 1129, 1134 (5th Cir. 1993). Thus, the

guideline is not susceptible to an equal protection challenge.

      The double jeopardy strand of Silva’s argument is similarly flawed. The

Double Jeopardy Clause “protects a criminal defendant from multiple

prosecutions and from multiple punishments for the same conduct.” United States

v. Overstreet, 40 F.3d 1090, 1093 (10th Cir. 1994) (citing United States v. Dixon,

509 U.S. 688, 695-96 (1993)). Generally, a statute does not violate double

jeopardy if it provides for enhanced punishment for a new crime, even though the

enhancement is premised on a defendant’s criminal history. See Witte v. United

States, 515 U.S. 389, 400 (1995); United States v. Hawley, 93 F.3d 682, 688 (10th

Cir. 1996). Here, § 1326 provides for sentence enhancement for the offense of

illegal re-entry into the United States, not punishment for a prior conviction. See

United States v. Valdez, 103 F.3d 95, 97 (10th Cir. 1996). Accordingly, Silva’s §

1326 conviction does not violate the Double Jeopardy Clause.




                                         -5-
      The remaining constitutional argument, based on the Eighth Amendment

prohibition against cruel and unusual punishment, also fails. “If the imposed

sentence is within the statutory limits . . . , an appellate court ‘generally will not

regard it as cruel and unusual punishment.’” United States v. Youngpeter, 986

F.2d 349, 355 (10th Cir. 1993) (quoting United States v. Hughes, 901 F.2d 830,

832 (10th Cir. 1990); see also Cardenas-Alvarez, 987 F.2d at 1134 (100-month

sentence for violation of § 1326(b) did not violate Eighth Amendment).

      Silva’s second main argument is that he should have received a downward

departure from the guidelines for family responsibilities because his elderly

mother is in Mexico with health problems. Although “we retain the ability to

review a refusal to depart when the denial is based on an illegal factor, or an

incorrect application of the Guidelines,” we normally “lack jurisdiction to review

a sentencing court’s discretionary denial of a downward departure.” United

States v. Guidry, No. 98-3287, 1999 WL 1244487, at *10 (10th Cir. Dec. 21,

1999). Here, there is no contention that the district court based its sentencing

decision on an illegal factor, or an incorrect application of the guidelines.

Therefore, we have no jurisdiction to review the denial of Silva’s requested

downward departure.

      Finally, Silva asserts that he received ineffective assistance of counsel,

claiming that his defense attorney did not inform him of his right to move for a


                                           -6-
downward departure and did not conduct an proper investigation of the

convictions which entered into the calculation of his criminal history points. Our

usual rule is that “[i]neffective assistance of counsel claims should be brought in

collateral proceedings, not on direct appeal.” United States v. Galloway, 56 F.3d

1239, 1240 (10th Cir. 1995) (en banc). “A factual record must be developed in

and addressed by the district court in the first instance for effective review.” Id.

Although we recognized that in rare instances the merits of an ineffectiveness

claim may be reviewed on direct appeal because the claim needs no further

development, id., that rare exception is clearly not applicable here. In fact, the

record before us reflects that trial counsel was effective in obtaining an agreement

from the government to recommend a sentence at the low end of the guideline

range. We also note that the transcript of the sentencing hearing belies Silva’s

contention that he was not informed of his right to move for a downward

departure based on family circumstances. See R., Vol. II at 4-5 (counsel’s request

for a downward departure), 9 (the court’s denial of the request). To the extent

Silva wishes to raise counsel ineffectiveness issues not apparent on this record, he

must do so collaterally.

      Accordingly, we AFFIRM defendant’s sentence. We grant counsel’s

motion to withdraw.




                                          -7-
      Entered for the Court



      John C. Porfilio
      Senior Circuit Judge




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