                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  April 13, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 09-2237
 v.                                           (D.Ct. No. 1:09-CR-01847-WJ-1)
                                                          (D. N.M.)
 MANUEL URQUIAGA-GONZALEZ,

          Defendant-Appellant.
                       ______________________________

                                ORDER AND JUDGMENT *


Before BARRETT, ANDERSON, and BRORBY, Senior Circuit Judges.



      After examining the briefs and 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.



      Defendant-Appellant Manuel Urquiaga-Gonzalez pled guilty to one count

of unlawful reentry of a previously removed alien subsequent to a felony

      *
         This order and judgment is not binding precedent except under the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.
conviction, in violation of 8 U.S.C. § 1326(a)(1) and (2) and (b)(2). The district

court sentenced him to thirty-three months imprisonment. Although Mr.

Urquiaga-Gonzalez appeals his conviction and sentence, his attorney has filed an

Anders brief and a motion for permission to withdraw as counsel. See Anders v.

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

grant counsel’s motion to withdraw and dismiss this appeal. Id.



                                   I. Background

      On July 6, 2009, Mr. Urquiaga-Gonzalez entered into a “Fast Track Plea

Agreement” and pled guilty to unlawful reentry in violation of 8 U.S.C.

§ 1326(a)(1) and (2) and (b)(2). As part of his plea agreement, he waived his

right to appeal any sentence within the applicable United States Sentencing

Guidelines (“Guidelines” or “U.S.S.G.”) range and collaterally attack his

conviction, except for ineffective assistance of counsel claims. Also, in his plea

agreement and as discussed during the plea hearing, Mr. Urquiaga-Gonzalez

acknowledged, in part, he: (1) understood the Constitutional rights he was

waiving; (2) knew the maximum possible penalty for his crime was twenty years;

(3) was aware the court would consider the Guidelines in determining his

sentence; (4) agreed on the accuracy of all the facts alleged in support of the

crime of illegal reentry; and (5) acknowledged he entered his plea freely and

voluntarily. Following its questioning of Mr. Urquiaga-Gonzalez during the plea

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hearing, the district court found him fully competent and capable of entering an

informed plea; that he understood the nature of the charges and consequences of

the plea; and that his guilty plea was knowing and voluntary and supported by

independent evidence as to the elements of the offense charged. It then accepted

Mr. Urquiaga-Gonzalez’s guilty plea.



      Thereafter, a probation officer prepared a presentence report calculating

Mr. Urquiaga-Gonzalez’s sentence under the applicable 2008 Guidelines. The

probation officer set the base offense level at eight, under U.S.S.G. § 2L1.2(a),

and added a sixteen-level adjustment, under U.S.S.G. § 2L1.2(b)(1)(A)(i),

because Mr. Urquiaga-Gonzalez had been deported subsequent to having been

convicted of an aggravated felony involving drug trafficking. In addition, based

on his acceptance of responsibility, the probation officer included a three-level

reduction, for a total offense level of twenty-one. A total offense level of twenty-

one, together with a criminal history category of IV, resulted in a Guidelines

imprisonment range of fifty-seven to seventy-one months. However, the

probation officer also calculated a three-level downward departure based on Mr.

Urquiaga-Gonzalez’s participation in the early disposition program, known as the

“Fast Track” program, which resulted in a Guidelines imprisonment range of

forty-one to fifty-one months.




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      Thereafter, Mr. Urquiaga-Gonzalez’s counsel objected to the inclusion of

one of Mr. Urquiaga-Gonzalez’s criminal convictions (for speeding, driving with

an open container, and having no automobile insurance) in calculating his

sentence. The district court agreed the conviction should not be considered and

reduced his criminal history score by one point, resulting in a Guidelines range of

thirty-three to forty-one months imprisonment. The district court then sentenced

him to thirty-three months imprisonment, at the low end of the newly-calculated

Guidelines range.



      Following Mr. Urquiaga-Gonzalez’s timely pro se notice of appeal, his

appointed counsel filed an Anders appeal brief explaining no meritorious issues

exist on appeal. See Anders, 386 U.S. at 744. In support, counsel points out: (1)

Mr. Urquiaga-Gonzalez pled guilty in conjunction with a plea agreement stating

he waived his appeal rights; (2) the district court correctly calculated his sentence

and sentenced him at the low end of the Guidelines range; and (3) his guilty plea

was knowing, intelligent, and voluntary. Pursuant to Anders, this court gave Mr.

Urquiaga-Gonzalez an opportunity to respond to his counsel’s Anders brief. See

id. On February 3, 2010, Mr. Urquiaga-Gonzalez filed a response, stating his

attorney made a representation to him that his sentence would be thirty months or

less, and, therefore, he did not “represent me as he should have.” He also states

the district court added three months to his sentence for an offense of driving

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while intoxicated which he did not commit. The government filed a notice of its

intention not to file an answer brief in this appeal.



                                    II. Discussion

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

before us. See id. A review of the plea agreement and hearing establishes Mr.

Urquiaga-Gonzalez’s guilty plea was voluntarily, knowingly, and intelligently

entered and that sufficient evidence supported both his plea and conviction.

Having established the record supports his conviction, we review his sentence for

reasonableness, 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 sentenced him to thirty-three months imprisonment,

which is at the low end of the properly-calculated advisory Guidelines range and

entitled to a rebuttable presumption of reasonableness. Id. at 1053-55.



      Mr. Urquiaga-Gonzalez has not rebutted this presumption with any

nonfrivolous reason warranting a lower sentence. Id. Instead, he raises an

ineffective assistance argument. 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). We

                                          -5-
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 Mr. Urquiaga-Gonzalez’s ineffective assistance of counsel claim on

direct appeal. See Massaro v. United States, 538 U.S. 500, 504 (2003) (holding

“in most cases a motion brought under § 2255 is preferable to direct appeal for

deciding claims of ineffective-assistance”).



      In addition, nothing in the record supports his contention the district court

somehow increased his sentence for driving while under the influence of alcohol.

Neither the presentence report nor any other portion of the record shows he was

ever convicted of such a charge or that the district court considered such a charge

in calculating his sentence.



                                  III. Conclusion

      For these reasons, no meritorious appellate issue exists. Accordingly, we

GRANT counsel’s motion to withdraw and DISMISS Mr. Urquiaga-Gonzalez’s

appeal.

                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge


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