                                                                                 FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit

                         UNITED STATES COURT OF APPEALS                    August 28, 2013

                                                                         Elisabeth A. Shumaker
                                    TENTH CIRCUIT                            Clerk of Court




 UNITED STATES OF AMERICA,

           Plaintiff–Appellee,                               No. 13-3083
                                                  (D.C. No. 6:12-CR-10234-MLB-1)
 v.                                                           (D. Kan.)

 GUADALUPE BURCIAGA-
 ALCANTAR,

           Defendant–Appellant.


                                 ORDER AND JUDGMENT*


Before LUCERO, McKAY, and MURPHY, Circuit Judges.


       Guadalupe Burciaga-Alcantar appeals following his guilty plea to Possession of a

Firearm by an Illegal Alien in violation of 18 U.S.C. § 922(g)(5)(A). Burciaga-

       *
         After examining appellant’s brief and the 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
Alcantar’s counsel moves for leave to withdraw pursuant to Anders v. California, 386

U.S. 738 (1967). Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742,

we dismiss the appeal and grant counsel’s motion to withdraw.

                                              I

       Burciaga-Alcantar pled guilty to one count of Possession of a Firearm by an

Illegal Alien. A presentence report calculated a total offense level of twelve and a

criminal history category of VI, which resulted in an advisory Guidelines range of thirty

to thirty-seven months’ imprisonment.

       Prior to sentencing, the district court issued a letter pursuant to Fed. R. Crim. P.

32(h), stating that it was considering an upward variance. The court initially sentenced

Burciaga-Alcantar to sixty-five months’ imprisonment, but after he filed a motion to

reconsider, the court reduced the sentence to forty-eight months. Burciaga-Alcantar

timely appealed.

                                              II

       If an attorney concludes that any appeal would be frivolous after conscientiously

examining the case, counsel may so advise the court and request permission to withdraw.

Anders, 386 U.S. at 744. Counsel must submit a brief highlighting any potentially

appealable issues and submit the brief to the defendant. Id. The defendant may then

submit a pro se brief. If the court determines that the appeal is in fact frivolous upon

careful examination of the record, it may grant the request to withdraw and dismiss the
                                            -2-
appeal. Id. In this case, counsel sent a copy of the Anders brief to Burciaga-Alcantar,

and Burciaga-Alcantar filed a pro se brief.

                                              A

       Counsel’s Anders brief discusses the substantive reasonableness of Burciaga-

Alcantar’s sentence. We “review all sentences—whether inside, just outside, or

significantly outside the Guidelines range—under a deferential abuse-of-discretion

standard.” Gall v. United States, 552 U.S. 38, 41 (2007). Substantive reasonableness

addresses 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. Reyes-

Alfonso, 653 F.3d 1137, 1145 (10th Cir. 2011) (quotation omitted). “[A] district court’s

sentence is substantively unreasonable only if it is arbitrary, capricious, whimsical, or

manifestly unreasonable.” United States v. Sayad, 589 F.3d 1110, 1116 (10th Cir. 2009)

(quotation omitted).

       We conclude that Burciaga-Alcantar’s sentence is not substantively unreasonable

in light of the § 3553(a) factors. In considering these factors, the district court noted

Burciaga-Alcantar’s four prior convictions for Driving Under the Influence of Alcohol

(“DUI”), stating that such behavior created a “risk of danger” to the public, and

concluding that an upward variance was necessary to reflect the seriousness of the

offense, promote respect for the law, provide just punishment, and adequately deter

further crimes.
                                              -3-
       Counsel correctly notes that we have previously held that imposing an upward

variance due to a history of DUI convictions is not substantively unreasonable. United

States v. Valtierra-Rojas, 468 F.3d 1235, 1242 (10th Cir. 2006) (affirming upward

variance of thirty-three months); see also United States v. Angel-Guzman, 506 F.3d 1007,

1018-19 (10th Cir. 2007) (emphasizing the seriousness of repeated DUIs in upholding

sentence).

       Nothing in the record suggests that the district court abused its discretion in

varying upward eleven months from Burciaga-Alcantar’s Guidelines range based on his

history of DUIs. Nor have we uncovered any other potentially meritorious arguments not

addressed by counsel in our independent review of the record.

                                              B

       Burciaga-Alcantar’s pro se brief argues that counsel is ineffective for failing to

represent him in this appeal. However, in general “[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). “A factual record must be developed

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

the extent Burciaga-Alcantar seeks to raise this issue, it should be pursued on collateral

review.

       Burciaga-Alcantar also asserts that 18 U.S.C. § 922(g)(5)(A), which prohibits

possession of a firearm by an “alien . . . illegally or unlawfully in the United States,” is
                                               -4-
discriminatory and violates the First Amendment, Second Amendment, Ninth

Amendment, and the Commerce Clause. Because Burciaga-Alcantar failed to raise these

arguments below, he may not raise these claims on appeal, absent plain error. See United

States v. Calderon, 428 F.3d 928, 932 (10th Cir. 2005). But Burciaga-Alcantar does not

address the four prongs of plain-error review, see United States v. Gonzalez-Huerta, 403

F.3d 727, 732 (10th Cir. 2005), and instead asserts only conclusory claims of

constitutional error. “[E]ven pro se litigants must do more than make mere conclusory

statements regarding constitutional claims.” Brown v. Zavaras, 63 F.3d 967, 972 (10th

Cir. 1995). Regardless, we conclude that any error is not plain: “Federal statutes that

classify based on alienage need only a rational basis.” United States v. Huitron-Guizar,

678 F.3d 1164, 1167 (10th Cir. 2012), cert. denied, 133 S. Ct. 289 (2012) (rejecting

Second Amendment and equal protection challenges to § 922(g)(5)(A)).

                                            III

       Because we are not presented with any meritorious grounds for appeal, we

GRANT counsel’s request to withdraw and DISMISS the appeal.

                                          Entered for the Court



                                          Carlos F. Lucero
                                          Circuit Judge



                                            -5-
