                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                 December 11, 2008
                     UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                   TENTH CIRCUIT                     Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 08-4021
 v.                                              (D.C. No. 2:06-CR-111-DAK)
                                                           (D. Utah)
 SAUL GARCIA MACIAS,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


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



      Defendant-Appellant Saul Garcia Macias pled guilty to (1) violating 21

U.S.C. § 841(a)(1), possession with intent to distribute a controlled substance, (2)

violating 18 U.S.C. § 1546(1), possession of a false immigration document, and

(3) violating 18 U.S.C. § 1028A, aggravated identity theft. Macias now appeals,

raising issues with respect to his sentence as well as the district court’s denial of


      *
       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) 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
his motion to suppress. Macias’s counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), and moved for leave to withdraw; Macias

submitted a supplemental brief in response to the Anders brief which argued

ineffective assistance of trial counsel and requested appointment of new counsel.

Having throughly reviewed the record and considered each brief, we grant

counsel’s motion to withdraw, deny Macais’s request for appointment of new

counsel, and affirm.



                               I. BACKGROUND

      As stipulated in Macias’s plea agreement, the conduct giving rise to his

indictment occurred on February 2, 2006. On that date, Macias and his co-

defendant Jacqueline Fodness were driving his truck, with approximately six

pounds of methamphetamine hidden within a secret compartment in the vehicle,

from Los Angeles to Sioux Falls, South Dakota. At the time of Macias’s arrest,

in Utah en route, Macias was found in possession of the methamphetamine as well

as a green card which had previously been issued to another individual.

      Macias moved to suppress all of the evidence that the government had

obtained against him from the search of his truck. The motion was referred to a

magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B), who subsequently held an

evidentiary hearing on the motion. The magistrate issued a report and

recommendation on November 13, 2006, which recommended that Macias’s

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motion be denied. Macias did not object to the report and recommendation,

which the district court adopted on December 19, 2006.

      Thereafter, Macias pled guilty to all three counts in the indictment: (1)

violating 21 U.S.C. § 841(a)(1), possession with intent to distribute a controlled

substance, (2) violating 18 U.S.C. § 1546(1), possession of a false immigration

document, and (3) violating 18 U.S.C. § 1028A, aggravated identity theft. Under

the terms of the plea, Macias specifically reserved the right to appeal the denial of

the motion to suppress.

      Having accepted Macias’s guilty plea, a Presentence Report was prepared,

which determined Macias’s total offense level was 35, and his criminal history

category to be II. Macias’s total offense level coupled with his criminal history

category resulted in a guideline sentence range of 188 to 235 month’s

imprisonment. U.S.S.G. (2006). Macias filed a motion requesting the district

court to grant a downward departure to the minimum mandatory sentence for his

crimes, 144 months. The district court sentenced Macias to 166 months’

imprisonment, 22 months below the guideline range. In so doing, the court

stated:

            This is an interesting case. It’s very rare that somebody just
      pleads straight up to all the counts, but he did what he did.
            I’m going to sentence him to 166 months. . . . The 166
      months is a long time. I think it is correct there is some disparity
      under 3553 with this defendant and [his co-defendant] Ms. Fodness
      [who received a sentence of 120 months].


                                         -3-
Macias now timely appeals.



                                II. DISCUSSION

      In Anders, the Supreme Court held that “if counsel finds his case to be

wholly frivolous, after a conscientious examination of it, he should so advise the

court and request permission to withdraw.” 386 U.S. at 744. This court “must

then conduct a full examination of the record to determine whether defendant's

claims are wholly frivolous. If [we] conclude [ ] after such an examination that

the appeal is frivolous, [we] may grant counsel’s motion to withdraw and may

dismiss the appeal.” United States v. Calderon, 428 F.3d 928, 930 (10th

Cir.2005).

      Counsel’s brief appears to identify two potential issues for appeal: (1) the

district court’s denial of Macias’s motion to suppress, and (2) the reasonableness

of Macias’s sentence. In addition to counsel’s brief, Nelson has filed a

supplemental brief asserting ineffective assistance of counsel. Each of these

matters will be considered in turn.



                              A. Motion to Suppress

      Macias’s counsel asserts that there is no non-frivolous ground on which

Macias may challenge the district court’s denial of his motion to suppress.




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Having engaged in a full examination of the record, as required by Anders, we

agree.

         Macias filed a motion to suppress, arguing that the stop and subsequent

search of his vehicle violated the Fourth Amendment. Macias’s motion was

referred to a magistrate judge, and the magistrate recommended denying the

motion in a report and recommendation. Macias did not object to the report and

recommendation, and the district court adopted the magistrate’s report. We agree

with Macias’s counsel that Macias’s failure to object to the magistrate’s judge’s

report and recommendation is fatal to this claim.

         “This court has adopted a firm waiver rule under which a party who fails to

make a timely objection to the magistrate judge’s findings and recommendations

waives appellate review of both factual and legal questions.” Morales-Fernandez

v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005). There are two exceptions to the

waiver rule: “when (1) a pro se litigant has not been informed of the time period

for objecting and consequences of failing to object, or when (2) the ‘interests of

justice’ require review.” Id. The first exception does not apply, because Macias

was represented by counsel before the district court and the magistrate’s report

warned that a “[f]ailure to file objections to factual and legal findings may

constitute a waiver of those objections on subsequent appellate review.” The

second exception also does not apply. In Morales-Fernandez we held that “[i]n

many respects, the interests of justice analysis we have developed, which

                                          -5-
expressly includes review of a litigant’s unobjected-to substantive claims on the

merits, is similar to reviewing for plain error,” 418 F.3d at 1120, and that “[a]t a

minimum ... our ‘interest of justice’ standard for determining whether we should

excuse a defendant’s failure to object to a magistrate judge’s recommendation

includes plain error,” id. at 1122. When there are no mitigating factors regarding

a litigant’s failure to object, the “interest of justice” test requires only analysis for

plain error. See Zumwalt v. Astrue, 220 Fed. App’x. 770, 778 (10th Cir. Mar. 22,

2007) (unpublished). Here, there are no mitigating factors regarding Macias’s

failure to comply with the requirement to object to the magistrate’s

recommendation and report and, therefore, our only concern is plain error.

      “Plain error occurs when there is (1) error, (2) that is plain, which (3)

affects substantial rights, and which (4) seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Morales-Fernandez, 418 F.3d at

1122-23 (internal quotation marks omitted). “[A]n error is ‘plain’ if it is clear or

obvious at the time of the appeal.” Id. at 1124. Macias argued below that Officer

Nick Bowles, the arresting officer, violated his Fourth Amendment rights by

conducting both an illegal stop and an illegal search of Macias’s vehicle.

      We discern no plain error here. Officer Bowles was initially justified in

stopping Macias because he observed Macias’s pick-up truck following the




                                           -6-
vehicle in front of it too closely, which is a violation of Utah law. 1 See United

States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995). After completing a

check on Macias’s license and registration, Officer Bowles issued Macias a

warning, returned Macias’s documents and told Macias that he was free to leave.

When Macias reached his vehicle, Officer Bowles asked if could talk with

Macias, thus turning the situation into a consensual encounter. See United States

v. Wallace, 429 F.3d 969, 974-75 (10th Cir. 2005). After some questioning,

Macias proceeded to grant Officer Bowles consent to search the vehicle. Macias

contended that Officer Bowles exceeded the scope of that consent when he pulled

up the carpet on the floor of the driver’s side of Macias’s truck and then used a

crow bar to pry up a steel plate under the driver’s seat, revealing a secret

compartment. However, Macias never revoked consent and this court has “upheld

. . . searches involving the partial dismantling of a vehicle pursuant to general

consent when the defendant did not object.” United States v. Gregoire, 425 F.3d

872, 880 (10th Cir. 2005) (upholding search “that began with the drilling of two

holes in the interior and concluded with a large screwdriver used to pry away a

portion of the undercarriage of the vehicle to reveal the contraband”).




      1
        Following a vehicle more closely than is reasonable in light of the
vehicle’s speed and traffic conditions is a violation of Utah Code Ann. § 41-6a-
711(1).

                                         -7-
                               B. Macias’s Sentence

      Macias’s counsel asserts that there is no non-frivolous ground on which

Macias may challenge either the procedural or substantive reasonableness of his

sentence. Having engaged in a full examination of the record, as required by

Anders, we agree. The district court properly calculated Macias’s guideline range

sentence and considered Macias’s request for a downward departure, together

with the § 3553(a) sentencing factors, and the uncontested facts in the presentence

report. Thereafter the district court sentenced Macias to 22 months less than the

advisory guideline range, “departing lightly [from the guideline range] under

3553.” The sentence imposed by the district court, which was below the

guideline range, is entitled to a presumption of reasonableness when challenged

by defendant. See United States v. Conteras-Mirelas, No. 08-2092, 2008 WL

4793832, at *3 (10th Cir. Nov. 5, 2008). Based on our review of the record, we

find no basis on which this presumption can be overcome.



                       C. Ineffective Assistance of Counsel

      In his pro se filing, Macias argues that his trial counsel provided ineffective

assistance by failing to object to the magistrate’s report and recommendation on

Macias’s motion to suppress. Macias’s ineffective assistance of counsel claim is

more appropriately brought on collateral review in a 28 U.S.C. § 2255 motion.

See United States v. Brooks, 438 F.3d 1231, 1242 (10th Cir. 2006). “The purpose

                                        -8-
of this rule is to ensure that we are provided with a developed factual record of

the events.” Id. Therefore, Macias’s claims in this regard are premature.



                               III. CONCLUSION

      Based on the foregoing, we GRANT counsel’s motion to withdraw and

DENY Macias’s request for appointment of new counsel. This appeal is

DISMISSED, and the judgment is AFFIRMED.


                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




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