                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                    June 30, 2008
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                     Clerk of Court
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 07-1508
 v.
                                             (D.C. No. 07-CR-00211-WYD-1)
                                                        (D. Colo.)
 SIMON SANDOVAL-DE LAO,
 a/k/a Arturo Garcia,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before O’BRIEN, EBEL, and GORSUCH, Circuit Judges.


      Simon Sandoval-De Lao pled guilty to one count of unlawful re-entry of an

alien, subsequent to an aggravated felony conviction, in violation of 8 U.S.C.

§ 1326(a) and (b)(2). The district court sentenced him to 18 months incarceration

followed by 3 years of supervised release. On appeal, Mr. Sandoval-De Lao’s



      *
         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) and 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order and judgment is not binding precedent except under the doctrines of law of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.
counsel filed an Anders brief and moved to withdraw as counsel. See Anders v.

California, 386 U.S. 738 (1967). We received no response from Mr. Sandoval-De

Lao, and the government also declined to file a response. 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.

                                      * * *

      On March 24, 2007, Mr. Sandoval-De Lao was stopped by Denver police

on a routine traffic stop. After a records check revealed that Mr. Sandoval-De

Lao was previously deported for an aggravated felony, the police turned him over

to the Bureau of Immigration and Customs Enforcement (“ICE”). Mr. Sandoval-

De Lao admitted to an ICE officer that he was not a United States citizen and was

in the country without permission following a previous deportation. A grand jury

issued an indictment charging Mr. Sandoval-De Lao with one count of unlawful

re-entry of an alien, subsequent to an aggravated felony conviction. See 8 U.S.C.

§ 1326(a) and (b)(2). Pursuant to a plea agreement, Mr. Sandoval-De Lao pled

guilty, and in exchange, the government agreed to recommend to the sentencing

court that Mr. Sandoval-De Lao’s offense level under the advisory United States

Sentencing Guidelines (“Guidelines”) should be reduced for acceptance of

responsibility and that Mr. Sandoval-De Lao should be sentenced at the bottom of

the Guidelines-recommended sentencing range.

                                        -2-
      The Presentence Report (“PSR”) advised that, under the Guidelines, Mr.

Sandoval-De Lao’s conviction carried a base offense level of 8. See U.S.S.G.

§ 2L1.2(a). Because he had been deported following a conviction of an

aggravated felony, the Guidelines recommended an 8-level enhancement. See id.

§ 2L1.2(b)(1)(C). Subtracting 3 levels for acceptance of responsibility, see id.

§ 3E1.1, Mr. Sandoval-De Lao’s final suggested offense level was 13. In

addition, Mr. Sandoval-De Lao’s criminal history resulted in a category level III

designation. Together, his final offense level of 13 and criminal history category

level of III resulted in a proposed Guidelines sentencing range of 18-24 months

with 2-3 years supervised release. See R. Vol. IV, at R-1.

      Mr. Sandoval-De Lao did not challenge any aspect of the facts outlined in

the PSR, and neither did he dispute the PSR’s calculated Guidelines range.

During the sentencing hearing, counsel for Mr. Sandoval-De Lao simply asked the

court to impose “as low a sentence as possible under the guidelines.” R. Vol. III,

at 3. The court obliged, sentencing Mr. Sandoval De-Lao to 18 months

imprisonment – at the bottom of the Guidelines-recommended range – with an

additional 3 years supervised release.

      Nine days after the district court entered its judgment, and one day before

his counsel filed a notice of appeal, Mr. Sandoval-De Lao submitted a pro se

“Motion for Resentencing/Reconsideration.” In the motion, Mr. Sandoval-De Lao

                                         -3-
explained that, prior to the sentencing hearing, he had been contacted by Harold

Sellers, who was not only Mr. Sandoval-De Lao’s employer but was also the

victim of Mr. Sandoval-De Lao’s prior felony (theft) conviction. Mr. Sellers had

expressed interest in testifying to the court regarding mitigating factors

surrounding the prior conviction, which Mr. Sandoval-De Lao believed would

warrant a downward departure under the Guidelines. According to Mr. Sandoval-

De Lao, his court-appointed counsel refused to pursue any downward departure

based on Mr. Seller’s statements. Accordingly, Mr. Sandoval-De Lao argued that

he received ineffective assistance of counsel, and asked the court to order a new

sentencing hearing.

      The district court denied the pro se motion, explaining that Mr. Sandoval-

De Lao was being represented by counsel, that there was no constitutional right to

a “hybrid form of representation,” and that the court was thus under no obligation

to consider any pro se filings. Mr. Sandoval-De Lao subsequently filed a

“Motion to Reconsider,” which the district court disregarded.

                                       * * *

      Pursuant to the Supreme Court’s decision in Anders v. California, a court-

appointed defense counsel may “request permission to withdraw [from an appeal]

where counsel conscientiously examines a case and determines that any appeal




                                         -4-
would be wholly frivolous.” United States v. Calderon, 428 F.3d 928, 930 (10th

Cir. 2005) (citing Anders, 386 U.S. at 744). This process requires counsel to

       submit a brief to the client and the appellate court indicating any
       potential appealable issues based on the record. The client may then
       choose to submit arguments to the court. The [c]ourt must then conduct
       a full examination of the record to determine whether defendant’s
       claims are wholly frivolous. If the court concludes after such an
       examination that the appeal is frivolous, it may grant counsel’s motion
       to withdraw and may dismiss the appeal.

Id. (citing Anders, 386 U.S. at 744).

      In his Anders brief, Mr. Sandoval-De Lao’s counsel noted that this appeal

would conceivably be meritorious only if (1) the guilty plea was invalid; (2) the

sentence was improper; (3) the trial court erred in denying the defendant’s pro se

“Motion for Reconsideration/Resentencing”; (4) the pro se motion should have

been construed as a Section 2255 petition; or (5) Mr. Sandoval-De Lao received

ineffective assistance of counsel. After conducting a full examination of the

record, we agree with counsel’s conclusion that no basis in law or fact exists for

any of these arguments.

      1. A valid guilty plea must be knowingly, intelligently, and voluntarily

made. See United States v. Gigot, 147 F.3d 1193, 1197 (10th Cir. 1998); see also

Fed. R. Crim. P. 11. Not only did Mr. Sandoval-De Lao sign a plea agreement,

but the transcript of the plea hearing also indicates that the district court fulfilled

the requirements set out in Rule 11 and those announced in Gigot to ensure the

                                           -5-
validity of the plea. See R. Vol. II, at 5-17 (indicating that the district court judge

verified a factual basis for the plea, questioned the defendant and confirmed that

he fully understood the charges against him and the consequences of the plea, and

otherwise ensured that the plea was freely, voluntarily, and intelligently made).

Mr. Sandoval-De Lao has failed to put forward any evidence or arguments that

would place the plea’s validity in doubt, and so any appeal on this ground would

be frivolous.

      2. We also fail to find any non-frivolous grounds for believing that the

district court abused its considerable discretion in sentencing Mr. Sandoval-De

Lao. See Gall v. United States, 128 S. Ct. 586, 597 (2007) (“Regardless of

whether the sentence imposed is inside or outside the Guidelines range, the

appellate court must review the sentence under an abuse-of-discretion standard.”).

In this case, the district court clearly understood and acknowledged the advisory

nature of the Guidelines and took into account all the sentencing factors under 18

U.S.C. § 3553(a). See R. Vol. III, at 5 (“The Court, while not bound to apply the

guidelines, has consulted the advisory guidelines and taken them into account

along with the sentencing factors identified at 18 United States Code Section

3553(a).”). Further, the district court proceeded to enter the very sentence

anticipated by Mr. Sandoval-De Lao’s plea agreement with the government and

advocated by Mr. Sandoval-De Lao’s counsel at the sentencing hearing.

                                          -6-
      3. We likewise discern no colorable basis for challenging the district

court’s decision not to consider Mr. Sandoval-De Lao’s pro se motion for

sentence reconsideration. At the time Mr. Sandoval-De Lao filed the motion, he

was represented by counsel. We have previously held that, because there is no

constitutional right to “a hybrid form of representation,” United States v.

McKinley, 58 F.3d 1475, 1480 (10th Cir. 1995), when defendants have the

assistance of counsel, courts need not consider any filings made pro se. See

United States v. Bennett, 539 F.2d 45, 49 (10th Cir. 1976) (“[P]ermission for

[hybrid representation] [is] recognized as being discretionary with the trial

court.”); see also United States v. Castellon, 218 F. App’x 775, 780 (10th Cir.

2007) (unpub.) (“[W]here a defendant is represented by counsel, we do not accept

pro se filings or allegations.”); id. at 780 n.4. The district court thus did not err

in refusing to consider Mr. Sandoval-De Lao’s pro se motion for sentence

reconsideration. 1

      4. Neither do we believe the district court erred by failing to construe Mr.

Sandoval-De Lao’s motion for reconsideration of his sentence as a 28 U.S.C.

      1
         As for the subsequent pro se motion to reconsider the denial of the first
pro se motion, we note that Mr. Sandoval-De Lao’s counsel had at that point
already filed a notice of appeal, thus establishing appellate jurisdiction over his
case and depriving the district court of jurisdiction to even consider the motion.
See Fed. R. App. P. 4(b); United States v. Prows, 448 F.3d 1223, 1228 (10th Cir.
2006) (“[A] notice of appeal generally divests a district court of jurisdiction over
the issues on appeal.”).

                                           -7-
§ 2255 petition. Not only is the question whether to construe such a filing as a

Section 2255 petition a matter committed to the district court’s discretion, see,

e.g., United States v. Valadez-Camarena, 402 F.3d 1259, 1261 (10th Cir. 2005),

but the Supreme Court also has made clear that district courts should be quite

wary of doing so because of the “serious consequences” that are at stake for the

prisoner, Castro v. United States, 540 U.S. 375, 377 (2003). Here, although Mr.

Sandoval-De Lao’s post-sentencing motion briefly cited 28 U.S.C. § 2255 (along

with 28 U.S.C. § 2241), 2 the motion itself was labeled as one asking for

reconsideration of the sentence and not as seeking collateral review. Given the

ambiguity in Mr. Sandoval-De Lao’s motion, the caution that district courts must

exercise in construing any such motion as a Section 2255 petition, and the fact

that a direct appeal was pending at the time of the district court’s ruling on the

motion, cf. United States v. Prows, 448 F.3d 1223, 1228 (10th Cir. 2006) (holding

that, where a direct appeal is pending, Section 2255 petitions should only be

allowed in “extraordinary circumstances”), we cannot say the district court abused




      2
         Though counsel does not raise the issue in the Anders brief, we note that
the district court could not have possibly construed the motion as a habeas
petition under 28 U.S.C. § 2241 because “[a] challenge to the propriety of the
federal conviction or sentence itself,” which was the express purpose of Mr.
Sandoval-De Lao’s motion, “must proceed under § 2255, not § 2241.” United
States v. Eccleston, 521 F.3d 1249, 1253 (10th Cir. 2008).

                                         -8-
its discretion in not construing Mr. Sandoval-De Lao’s motion as a Section 2255

habeas petition.

      5. Finally, though Mr. Sandoval-De Lao has already expressed his belief

that his trial counsel provided ineffective assistance, such claims are generally

most properly pursued in collateral proceedings under 28 U.S.C. § 2255, rather

than on direct appeal in order that the defendant can proceed with a record

developed for that purpose. See United States v. Brooks, 438 F.3d 1231, 1242

(10th Cir. 2006) (“The vast majority of ineffective assistance of counsel claims

should be brought in collateral proceedings rather than on direct appeal from a

conviction.”); see also United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir.

1995) (en banc) (“Such claims . . . are presumptively dismissible.”). Mr.

Sandoval-De Lao offers us no reason to depart from this general rule in this case.

                                       * * *

      For the foregoing reasons, we grant counsel’s motion to withdraw and

dismiss the appeal.



                                       ENTERED FOR THE COURT



                                       Neil M. Gorsuch
                                       Circuit Judge



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