                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                       October 21, 2005
                                 TENTH CIRCUIT
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 05-3020
          v.                                             (D. Kansas)
 ALFONSO LEOS-HERNANDEZ,                       (D.C. No. 04-CR-10190-MLB)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before HARTZ, Circuit Judge, BARRETT, Senior Circuit Judge, and
McCONNELL, Circuit Judge.


      Alfonso Leos-Hernandez pleaded guilty to a one-count indictment charging

him with illegal reentry after deportation subsequent to conviction for an

aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b). As part of the plea

agreement he waived all rights to appeal on any ground except (1) upward



      *
       After examining the briefs and 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); 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not binding precedent, except under the doctrines of law of the case, res judicata,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. 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.
departures and (2) use of an allegedly time-barred prior conviction to enhance his

sentence under United States Sentencing Guidelines (USSG) § 2L1.2(b). He

specifically waived any right to have facts that might enhance his sentence

determined by a jury, and agreed that the court would impose sentence under the

Sentencing Guidelines after finding facts by a preponderance of the evidence.

      On January 3, 2005, Mr. Leos-Hernandez was sentenced to 87 months’

imprisonment. In imposing sentence the district court applied a 16-level

enhancement to his base offense level because of a 1986 manslaughter conviction,

which Mr. Leos-Hernandez admitted to as part of the plea agreement.

      Counsel for Mr. Leos-Hernandez has filed an Anders brief stating the issues

his client wishes to raise on appeal and why they have no merit. Anders v.

California, 386 U.S. 738 (1967). We agree with counsel that there are no

meritorious issues to be raised on appeal, grant his motion to withdraw, and

dismiss the appeal.

      Mr. Leos-Hernandez desires to raise two issues on appeal: (1) whether his

1986 conviction qualified him for the 16-level enhancement under USSG

§ 2L1.2(b), and (2) whether remand for resentencing is required under United

States v. Booker, 125 S.Ct. 738 (2005). Counsel believes that neither issue has

any merit and has filed a motion to withdraw. The procedure for appointed

counsel to withdraw on appeal is set out in Anders v. California:


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      [I]f 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. That request must . . . be
      accompanied by a brief referring to anything in the record that might
      arguably support the appeal. A copy of counsel’s brief should be
      furnished the indigent and time allowed him to raise any points that
      he chooses; the court—not counsel—then proceeds, after a full
      examination of all the proceedings, to decide whether the case is
      wholly frivolous. If it so finds it may grant counsel’s request to
      withdraw and dismiss the appeal insofar as federal requirements are
      concerned, or proceed to a decision on the merits, if state law so
      requires. On the other hand, if it finds any of the legal points
      arguable on their merits (and therefore not frivolous) it must, prior to
      decision, afford the indigent the assistance of counsel to argue the
      appeal.


Anders, 386 U.S. at 744.


      Counsel is correct that the Sentencing Guidelines provide no time limit on

the prior convictions that may be used to enhance a sentence under USSG

§ 2L1.2(b). The Application Notes specifically provide that “‘[s]entence

imposed’ has the meaning given the term ‘sentence of imprisonment’ in

Application Note 2 and subsection (b) of § 4A1.2 . . . without regard to the date

of the conviction.” USSG § 2L1.2 comment (n.1(B)(vii)) (emphasis added); see

United States v. Stultz, 356 F.3d 261, 268 (2d Cir. 2004) (“The Sentencing

Guidelines provide no time limit on the prior federal and state convictions that

may be used to trigger a sentence enhancement.”). Thus, the time limits imposed

in USSG § 4A1.1 are inapplicable. See USSG § 2L1.2 comment (n.6) (“A



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conviction taken into account under subsection (b)(1) is not excluded from

consideration of whether that conviction receives criminal history points pursuant

to Chapter Four, Part A (Criminal History).”). The issue is therefore wholly

frivolous.

      Counsel is also correct that remand for resentencing is not required in light

of Booker. First, Mr. Leos-Hernandez waived any right to appeal this issue.

Second, he specifically agreed to be sentenced by the judge under the guidelines

and waived his right to have a jury determine facts that might enhance his

sentence. Therefore, this issue is also wholly frivolous.

      In his supplemental brief Mr. Leos-Hernandez argues that use of his prior

conviction to enhance his sentence was improper under Shepard v. United States,

125 S. Ct. 1254 (2005). But Shepard is inapplicable because he waived his right

to have his sentence based on facts determined by the jury. Moreover, as

discussed above, he admitted the facts necessary to impose the enhancement.

Shepard applies only “in the absence of any waiver of rights by the defendant.”

Id. at 1262.

      Finally, Mr. Leos-Hernandez suggests in his supplemental brief that his

counsel coerced him into the plea agreement. Ineffectiveness claims should be

raised on collateral review. United States v. Galloway, 56 F.3d 1239, 1240 (10th

Cir. 1995) (en banc).

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We GRANT counsel’s motion for withdrawal and DISMISS this appeal.

                            ENTERED FOR THE COURT


                            Harris L Hartz
                            Circuit Judge




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