                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           OCT 16 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 00-4169
                                                    (D.C. No. 00-CR-239-S)
    FLAVIO ENRIQUE                                         (D. Utah)
    TREVIZO-MIRAMONTES,

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before EBEL , KELLY , and LUCERO , Circuit Judges.



         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); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

         Defendant Flavio Enrique Trevizo-Miramontes appeals his conviction and

sentence for illegally reentering the United States after deportation, in violation


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
of 8 U.S.C. § 1326. For the reasons stated below, we grant counsel’s motion to

withdraw and dismiss the appeal.

      Defendant, a citizen of Mexico, has lived in this country for approximately

twenty years. In 1996, he was convicted in Florida of selling a small amount of

cocaine and, after serving his sentence, was deported. Defendant was again

arrested and convicted of a controlled substance offense in 1998, and was

deported in November 1998.

      In May of 2000, defendant was discovered in the United States and was

charged with illegal reentry. He entered a plea of guilty pursuant to an agreement

in which the government agreed to recommend that defendant be given credit for

accepting responsibility and that he be sentenced at the low end of the sentencing

guidelines. In the presentence report (PSR), the United States Probation Office

recommended a guideline range of forty-six to fifty-seven months, based on

a sixteen-level enhancement for reentry after conviction of an aggravated felony

pursuant to United States Sentencing Guideline § 2L1.2(b)(1)(A); a three-point

reduction for acceptance of responsibility pursuant to United States Sentencing

Guideline § 3E1.1, and a criminal history category of III. Defendant did not

object to the calculations in the PSR. The district court accepted the PSR’s

recommendations and sentenced defendant to forty-six months’ incarceration,

which was the low end of the applicable guidelines range.


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      On appeal, defendant’s counsel has filed a brief pursuant to       Anders v.

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

holds that if counsel finds an appeal “to be wholly frivolous, after a conscientious

examination of it,” he or she “should so advise the court and request permission

to withdraw.” Id. at 744. Counsel must also submit to the court a brief

addressing anything in the record that arguably supports the appeal. The brief

is served upon the defendant, who may “raise any points that he chooses.”        Id.

We must then fully examine the proceedings to decide whether the appeal is

frivolous, and if so, we may grant counsel’s request to withdraw and dismiss

the appeal. Id. Here, defendant was provided with a copy of counsel’s brief but

has not responded.

      In her Anders brief, counsel related that defendant wished to raise the

following issues: (1) whether his sentence violated the proscription against

double jeopardy; (2) whether his sentence was cruel and unusual, thus violating

the Eighth Amendment; (3) whether § 1326 punished him for his status as an

alien; (4) whether he should have been granted a downward departure based on

his long residence in this country and the minor nature of his prior felonies; and

(5) whether counsel was ineffective. We agree that these issues are frivolous.

      Defendant was not placed twice in jeopardy because the increase in his

sentence based on his prior conviction was simply a sentence enhancement for


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the current offense, and not an additional punishment for the previous offense.

See Witte v. United States , 515 U.S. 389, 400 (1995) (explaining why recidivism

statutes do not violate double jeopardy). His sentence did not violate the Eighth

Amendment because it was well within the statutory and guideline limits.       United

States v. Youngpeter , 986 F.2d 349, 355 (10th Cir. 1993) (holding sentence not

regarded as cruel and unusual when within statutory and guideline limits).

       Defendant’s guilty plea waived his due process argument that § 1326

punished him based on his alien status.      United States v. Wright , 43 F.3d 491, 494

(10th Cir. 1994) (holding guilty plea waives all non-jurisdictional defenses,

including due process claims). In any event, the statute punished his act of

reentering the country, not his alienage.     See United States v. Cupa-Guillen ,

34 F.3d 860, 863 (9th Cir. 1994). We lack jurisdiction to review the district

court’s failure to depart downward in sentencing absent a claim that the court

misunderstood its authority to depart.      United States v. Coddington , 118 F.3d

1439, 1441 (10th Cir. 1997). Finally, defendant’s claims of ineffective assistance

of counsel should be brought in a collateral proceeding rather than on direct

appeal. United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995).




                                             -4-
      Accordingly, the direct criminal appeal is DISMISSED as frivolous. The

motion by the defendant’s counsel to withdraw is GRANTED. The mandate will

issue forthwith.


                                                Entered for the Court



                                                David M. Ebel
                                                Circuit Judge




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