                                                                                FILED
                                                                    United States Court of Appeals
                       UNITED STATES JUDGE OF APPEALS                       Tenth Circuit

                             FOR THE TENTH CIRCUIT                          July 11, 2016
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 15-2224
                                                 (D.C. No. 1:11-CR-02994-WJ-2)
JESUS MANUEL GALLEGOS,                                      (D. N.M.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before MATHESON, McKAY, and O’BRIEN, Circuit Judges.
                 _________________________________

      Jesus Manuel Gallegos appeals from a sentence imposed after remand in an

earlier appeal. See United States v. Gallegos, 610 F. App’x 786 (10th Cir. 2015)

(Gallegos I). After pleading guilty to one count of kidnapping under 18 U.S.C.

§ 1201(a)(1) he was originally sentenced to 360 months’ imprisonment. As a result

of an appeal to this court we vacated the sentence and remanded for clarification as to

whether a two-level or four-level sentencing enhancement was appropriate based on


      *
         After examining counsel’s brief, Gallegos’s response, and the appellate
record, this panel has determined unanimously that oral argument would not
materially assist in 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.
This order and judgment is not binding precedent, except under the doctrines of law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.
the severity of the victim’s eye injury. On remand, applying the criteria set forth in

18 U.S.C. § 3553(a) the judge again imposed a sentence of 360 months.1

      Gallegos’s appellate counsel2 filed an Anders brief and moved to withdraw

based on his assessment that the appeal presents no non-frivolous issues. See Anders

v. California, 386 U.S. 738, 744 (1967) (if after a “conscientious examination” of the

record, counsel finds an appeal “wholly frivolous,” counsel may move to withdraw

and contemporaneously file “a brief referring to anything in the record that might

arguably support the appeal”). Gallegos filed a pro se response to his counsel’s

Anders brief in which he requested appointment of new counsel. The government did

not file a brief. We have conducted an independent review of the record in addition

to considering the issues raised in counsel’s brief and Gallegos’s pro se response.

See id. (when counsel files an Anders brief, the reviewing judge should examine the

record to determine whether the case is “wholly frivolous”); accord United States v.

Calderon, 428 F.3d 928, 930 (10th Cir. 2005).3


      1
        At the original sentencing the range under the United States Sentencing
Guidelines (Guidelines) was 360 months to life in prison. At resentencing, the
Guidelines range was computed to be 324 to 405 months. Gallegos does not
challenge the calculation of the latter range.
      2
          Appellate counsel was not the same as trial counsel.
      3
         In undertaking our independent examination of the record, we have identified
a potential ground for appeal—Gallegos’s trial counsel may have been ineffective for
not interposing a contemporaneous objection to the sentence. This ground, however,
is not appropriately brought on direct appeal. “Ineffective 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). Thus, “when
                                                                            (continued)
                                            2
       Counsel’s Anders brief suggests several arguments Gallegos might possibly

make in claiming procedural error. Procedural review addresses “the method by

which a sentence was calculated.” United States v. Smart, 518 F.3d 800, 803

(10th Cir. 2008). Even so, he concedes that the failure to raise a contemporaneous

objection at the sentencing hearing relegates these claims to plain-error review. See

United States v. Ruby, 706 F.3d 1221, 1225 (10th Cir. 2013) (“Objections to

procedural reasonableness that are not contemporaneously raised . . . are subject to

plain error review.”). “Under plain error review, the defendant must demonstrate

(1) there is error, (2) that is plain, (3) which affects substantial rights, and (4) which

seriously affects the fairness, integrity, or public reputation of judicial proceedings.”

Id. at 1226.

       The Anders brief poses three possible arguments suggesting how the sentence

might be considered procedurally unreasonable.4 First, he claims the sentencing


brought on direct appeal, ineffective assistance of counsel claims are presumptively
dismissible, and virtually all will be dismissed.” United States v. Trestyn, 646 F.3d
732, 741 (10th Cir. 2011) (internal quotations omitted). “[E]ven if the record appears
to need no further development, the claim should still be presented first to the district
[judge].” Galloway, 56 F.3d at 1240. We see no reason to depart from that general
rule in this case.
       4
         Those arguments are included in Gallegos’s pro se response, which also
contends the imposition of the same sentence on remand resulted in a substantively
unreasonable sentence because if the two-level enhancement had been correctly
applied in the first place, he would “undoubtedly” have been sentenced to 324
months. Response, at 5. “Substantive reasonableness involves whether the length of
the sentence is reasonable given all the circumstances of the case in light of the
factors set forth in 18 U.S.C. § 3553(a).” United States v. Craig, 808 F.3d 1249,
1261 (10th Cir. 2015) (internal quotation marks omitted). Gallegos’s speculative
                                                                             (continued)
                                             3
judge gave the Guidelines no weight because nothing had changed between the

original sentencing proceeding—where the judge imposed a sentence at the lowest

Guideline level—and the resentencing proceeding—where the judge selected a

sentence above the lowest level. Second, he argues that even though the judge and

the prosecution recognized a two-level enhancement as appropriate based on the

victim’s injuries (which was lower than the increase by four levels originally

attributed to the injuries), the judge nevertheless again imposed a 360-month

sentence. Thus, he contends the judge inappropriately gave more weight to the other

§ 3553(a) factors than to the Guidelines.5 Third, he claims the judge’s explanation

for not imposing a sentence at the low end of the Guidelines range on remand was

inadequate.

      We find no error. The first two arguments assume the judge was bound by

findings made at the original sentencing proceeding, which resulted in a sentence at

the low end of the Guidelines range. But “the default in this circuit is de novo

resentencing.” United States v. West, 646 F.3d 745, 750 (10th Cir. 2011). This court

in Gallegos I did not limit the scope of the remand, so the district judge had

discretion to conduct a new sentencing proceeding. See id. at 748-50 (discussing the


argument about his within-Guidelines sentence being substantively unreasonable is
insufficient to rebut the “presumption of substantive reasonableness on appeal,” id.
(internal quotation marks omitted).
      5
        According to Counsel’s Anders brief the district judge did not appear to
consider Gallegos’s post-sentencing conduct, but it does not describe any such
conduct or explain how it could have affected his sentence.

                                           4
scope of resentencing proceedings where the appellate remand did not limit the scope

of the remand); see also Pepper v. United States, 131 S. Ct. 1229, 1251 (2011)

(where appellate court remands for de novo resentencing, the resentencing judge “can

reconfigure the sentencing plan to satisfy the [statutory] sentencing factors” (ellipsis

and internal quotation marks omitted)). Gallegos was properly resentenced.

      Moreover, the judge adequately explained his reasoning. “When a district

[judge] imposes a within-Guidelines sentence, the [judge] must provide only a

general statement of [his] reasons, and need not explicitly refer to either the

§ 3553(a) factors or respond to every argument for leniency that [he] rejects in

arriving at a reasonable sentence.” United States v. Harry, 816 F.3d 1268, 1284

(10th Cir. 2016) (brackets and internal quotation marks omitted); see also Rita v.

United States, 551 U.S. 338, 356-57 (2007) (“[W]hen a judge decides simply to apply

the Guidelines to a particular case, doing so will not necessarily require lengthy

explanation.”).

      Here, the judge comprehensively addressed the relevant factors. He reviewed

the circumstances of Gallegos’s crime, noting that he and his codefendant had

terrorized and abused their victim for several hours, causing the victim legitimately

to fear for his life. Moreover, the injury to the victim’s eye was serious, even if it did

not meet the Guidelines definition of “permanent or life-threatening bodily injury” as

is necessary to warrant a four-level enhancement, see U.S.S.G. § 2A4.1(b)(2)(A). In

addition, the judge found the Guidelines offense level not adequate to account for

Gallegos’s criminal history. He specifically refuted the possible speculation that the

                                            5
original sentence of 360 months was selected solely because it was at the low end of

the Guidelines range, observing that nothing about Gallegos’s history and

characteristics had changed since the original sentencing proceeding. On

resentencing, the judge said a sentence of 360 months was sufficient, but not greater

than necessary, to satisfy the sentencing goals to reflect the seriousness of the

offense, to promote respect for the law, to provide just punishment, to deter criminal

conduct, and to protect the public from further crimes by Gallegos. In particular, he

highlighted Gallegos’s continuing alcohol problem, which contributed to his past

violent crimes and probation violations. Consequently, the judge believed that

Gallegos was likely to offend again. The judge adequately explained Gallegos’s

sentence; there was no error, let alone plain error.

      Counsel also contends the imposition of the same sentence on remand as the

original sentence demonstrates vindictiveness. Gallegos devotes most of his pro se

response to this claim, as well. We review this constitutional due-process claim de

novo. See United States v. Heineman, 767 F.3d 970, 973 (10th Cir. 2014) (stating

questions of constitutional law are reviewed de novo); United States v. Medley,

476 F.3d 835, 839 (10th Cir. 2007) (recognizing that a claim of vindictiveness

implicates due process). “[T]he defendant has the burden ‘to prove [that] actual

vindictiveness’ caused [a] higher sentence and . . . a presumption of vindictiveness

arises only in circumstances ‘in which there is a reasonable likelihood that the

increase in sentence is the product of actual vindictiveness on the part of the



                                            6
sentencing authority.’” Medley, 476 F.3d at 839 (quoting Alabama v. Smith, 490 U.S.

794, 799-800 (1989)).

      Counsel’s Anders brief contends the new sentence (based on the Guidelines

range) was greater than the original sentence. While the new sentence may have

been proportionally greater (because the sentencing range was lower), the actual

sentence was no longer than the original.6 Condign punishment embraces a host of

considerations: it is a loose aggregation of factors, not a mathematical equation

(except in calculating the Guidelines range). The seriousness of the victim’s injuries

is relevant, but not solely determinative. When a sentence in the overlap of two

Guideline ranges is (as here) adequately explained, we presume it to be reasonable.

We perceive no reason to apply a presumption of vindictiveness, particularly in light

of the district judge’s thorough explanation of the reasons for the sentence. Gallegos

does not claim to have evidence of actual vindictiveness; only speculation.

      We have considered the potential arguments presented in counsel’s Anders

brief, as well as those raised in Gallegos’s pro se response. In addition, we have

examined the record to determine whether there are any other claims arguable on

their merits. Gallegos’s appeal is wholly frivolous. Therefore, we dismiss this




      6
         In his pro se response Gallegos also claims there is no objective information
in the record to justify the increased sentence.

                                           7
appeal and grant counsel’s motion to withdraw. Gallegos’s request for appointment

of new counsel is denied.


                                         Entered for the Judge


                                         Terrence L. O’Brien
                                         Circuit Judge




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