                                                                         F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                           May 3, 2006
                                 TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                          Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 05-1134
          v.                                           (D. Colorado)
 BENJAMIN SANCHEZ-VALDEZ,                         (D.C. No. 04-CR-41-K)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, ANDERSON and BALDOCK, 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.




      *
       This order and judgment is not binding precedent, except under the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.
      Defendant-Appellant Benjamin Sanchez-Valdez pled guilty to one count of

unlawful reentry by a deported alien previously convicted for an aggravated

felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). He was sentenced to forty-

two months’ imprisonment. Sanchez-Valdez has filed a timely notice of appeal.

      Sanchez-Valdez’s appointed counsel, Raymond P. Moore, has filed an

Anders brief and moved to withdraw as counsel. See Anders v. California, 386

U.S. 738 (1967). Sanchez-Valdez has filed a response brief to the Anders brief.

The government has declined to submit a brief. For the following reasons, we

grant Sanchez-Valdez’s counsel’s motion to withdraw and we dismiss this appeal.



                                 BACKGROUND

      Sanchez-Valdez was charged in a one-count indictment with unlawful

reentry by a deported alien previously convicted for an aggravated felony, in

violation of 8 U.S.C. § 1326(a) and (b)(2). He eventually entered into a plea

agreement, in which he admitted his guilt in exchange for the government’s

agreement to recommend a three-level reduction in his base offense level for

acceptance of responsibility. The government also agreed to recommend a forty

percent downward departure from the sentencing range calculated under the

United States Sentencing Commission, Guidelines Manual (“USSG”) (Nov.

2004), in exchange for his substantial assistance.


                                        -2-
      At Sanchez-Valdez’s change of plea hearing, he was advised of: the

possible penalties he faced for the offense to which he was pleading guilty, his

rights to counsel, to a jury trial, to the presumption of innocence, to proof of guilt

beyond a reasonable doubt, to confrontation of witnesses, to be free from

compelled self-incrimination, and to compulsory process. Sanchez-Valdez

indicated he understood those rights and that, by pleading guilty, he was giving up

those rights. The district court also explained the potential impact of United

States v. Booker, 543 U.S. 220 (2005), which was pending before the Supreme

Court at the time of the hearing.

      As a factual basis for the plea, and as articulated in the plea agreement, the

government proffered that its evidence would show: that Sanchez-Valdez was a

citizen of Mexico; that on June 11, 1996, he was convicted in the state district

court for Adams County, Colorado, of second-degree assault (an aggravated

felony) and sentenced to fifteen months’ imprisonment; that he was removed from

the United States on March 18, 1999, pursuant to a removal order issued by an

immigration judge; that he illegally reentered the United States and was removed

for a second time on November 21, 2002; that he illegally reentered the United

States once again on June 10, 2003; and that he was found to be illegally in the

United States on December 30, 2003, after being arrested for public intoxication.

Sanchez-Valdez admitted those facts, but stated that, with respect to the Adams


                                          -3-
County case, he was misled into accepting a deal and that he did not receive the

sentence he thought he would. He nonetheless reiterated that he wished to

proceed with the plea agreement, and he pled guilty.

      The probation office prepared a presentence report (“PSR”), which

calculated an adjusted offense level of 21, which included the three-point

reduction for acceptance of responsibility and a criminal history category of V.

This yielded a Guideline sentencing range of seventy to eighty-seven months.

Neither the government nor Sanchez-Valdez filed any written objections to the

PSR. Pursuant to its commitment in the plea agreement, the government filed a

motion for a downward departure of forty percent from the Guideline range. The

PSR accordingly recommended a sentence of forty-two months.

      At his sentencing hearing, Sanchez-Valdez requested a further downward

departure, based upon two concerns. First, he argued that the circumstances

surrounding his 1996 conviction for assault, which resulted in a sixteen-level

increase in his offense level and raised his criminal history category from IV to V,

were unfair because he had planned to go to trial but agreed at the last minute to

plead guilty with the understanding that he would receive a sentence of probation.

Instead, he was sentenced to fifteen months. Sanchez-Valdez accordingly asked

for a further six-month reduction in his sentence.




                                         -4-
      Second, Sanchez-Valdez produced documents showing he had been granted

permanent resident status in 1999, and he alleged that he had subsequently

entered the country in reliance on those documents. He argued this supported an

additional reduction of his sentence.

      In pronouncing his sentence, the district court followed Booker and

considered the sentencing factors contained in 18 U.S.C. § 3553, as well as the

applicable Guideline range. After agreeing to the forty percent reduction sought

by the government, the court considered Sanchez-Valdez’s arguments for a further

reduction. With respect to his argument concerning his 1996 conviction for

assault, while the court “appreciate[d] that [Sanchez-Valdez] feels that he was not

treated fairly in that case and that he was not adequately represented[,]” the court

nonetheless held that:

      [h]is remedy . . . for that was at the time that conviction occurred. It
      was either to seek an appeal from the conviction or come to this
      court for relief under habeas corpus. The time periods for both of
      those actions have expired, and this court cannot go back and reopen
      that particular case to address any problems that occurred in it.

Tr. of Sentencing Hr’g at 22, R. Vol. III. The court further stated that, to the

extent Sanchez-Valdez was arguing that the 1996 conviction resulted in an

overstatement of his criminal history, his argument was unavailing because

Sanchez-Valdez “has . . . 14 convictions in a 15-year period” and that “one has to

work pretty hard to get 14 convictions in 15 years, especially when one is moving


                                          -5-
in and out of the country either voluntarily or involuntarily during that same time

period.” Id. at 22-23.

      With respect to his argument concerning his prior permanent resident

status, the court stated that it was irrelevant to his current offense because “the

fact of the matter is [Sanchez-Valdez] didn’t have authorization when he most

recently reentered, and that’s what we’re concerned with.” Id. at 24. The court

accordingly rejected Sanchez-Valdez’s argument for a further downward

departure and sentenced him to forty-two months.

      Sanchez-Valdez’s attorney, in his Anders brief, argues that an appeal of

Sanchez-Valdez’s conviction and/or sentence would be frivolous because there is

no viable challenge to the validity of Sanchez-Valdez’s guilty plea; Sanchez-

Valdez received a bargained-for downward departure; and the district court’s

sentence was otherwise reasonable. Sanchez-Valdez’s response to his counsel’s

Anders brief appears to assert that he was wrongly convicted because his

permanent resident card purported to be valid through 2009; that his counsel was

ineffective; that the plea agreement incorrectly states that he was deported three




                                          -6-
times previously when in fact he had only been deported twice before; 1 and that

his guilty plea was the product of coercion.



                                  DISCUSSION

      Anders authorizes counsel to request permission to withdraw where counsel

has conscientiously examined the case and has determined that any appeal would

be wholly frivolous. Anders, 386 U.S. at 744; see also United States v. Calderon,

428 F.3d 928, 930 (10th Cir. 2005). Accordingly,

      [u]nder Anders, counsel must submit a brief to the client and the
      appellate court indicating any potential appealable issues based on
      the record. The client may then choose to submit arguments to the
      court. The Court must then conduct a full examination of the record
      to determine whether defendant’s claims are wholly frivolous. If the
      court concludes after such an examination that the appeal is
      frivolous, it may grant counsel’s motion to withdraw and may dismiss
      the appeal.

Id. (citing Anders, 386 U.S. at 744). After fully examining the record and after

considering both Sanchez-Valdez’s response and the Anders brief filed by his

counsel, we conclude that there are no non-frivolous issues upon which Sanchez-

Valdez may base his appeal.




      1
       The plea agreement actually states that Sanchez-Valdez was deported twice
before his arrest on the current charge of illegal reentry. Contrary to what
Sanchez-Valdez asserts, the agreement does not state that he was deported three
times previously.

                                        -7-
      Sanchez-Valdez’s attorney argues that “[b]ecause the district court

thoroughly explained the consequences of the guilty plea, addressed the specific

terms of the plea agreement, and in every way complied with [Fed. R. Crim. P.]

11, counsel can find no non-frivolous challenge to the guilty plea.” Appellant’s

Opening Br. at 8. After examining the record, we agree. There is no basis for a

conclusion that the plea agreement was the product of coercion.

      Further, Sanchez-Valdez’s sentence is reasonable. Following the Supreme

Court’s decision in Booker, 543 U.S. 220, the Guidelines are advisory.

Nonetheless, courts must still “consider” the applicable Guideline range. United

States v. Gonzalez-Huerta, 403 F.3d 727, 748-49 (10th Cir.) (en banc), cert.

denied, 126 S. Ct. 495 (2005). We review for reasonableness the ultimate

sentence imposed. Booker, 543 U.S. at 261-62 (Breyer, J.).

      In this case, the district court first departed downward from the suggested

Guideline range by forty percent based on the government’s motion, as promised

in the plea agreement. Sanchez-Valdez argues the court should have departed

downward still further, based upon the alleged unfairness surrounding his 1996

assault conviction and because of his earlier-issued permanent resident

documents. The district court explained why it declined to depart further on the

basis of those two arguments. Its decision was “reasoned and reasonable.”

United States v. Tsosie, 376 F.3d 1210, 1218 (10th Cir. 2004) (further quotation


                                        -8-
omitted), cert. denied, 543 U.S. 1155 (2005); see also Booker, 543 U.S. at 262

(citing with approval Tsosie, 376 F.3d at 1218-19 (noting that a sentence’s

“reasonableness” hinged on whether the decision was both “reasoned and

reasonable”)); United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006) (per

curiam).

      Sanchez-Valdez suggests that his counsel was ineffective and that

ineffectiveness caused him to enter into a coerced plea agreement in this case, or,

at least, a plea agreement which he now seeks to refute. Sanchez-Valdez does not

articulate with any specificity in what way his counsel was ineffective. He asserts

that “encourag[ing] his client to plead guilty and sign an open ended plea

agreement, when a trial would have acquitted him is displaying incompetence at

best, or malicious conflict of interest, at worst.” Motion to Show Cause for

Relevancy of Claim at 1-2.

      “Ineffective assistance of counsel claims ‘should be brought in collateral

proceedings, not on direct appeal. Such claims brought on direct appeal are

presumptively dismissible, and virtually all will be dismissed.’” Calderon, 428

F.3d at 931 (quoting United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir.

1995) (en banc)); see also Massaro v. United States, 538 U.S. 500, 504-05 (2003).

Accordingly, even if we could identify a specific ineffectiveness claim alleged by




                                         -9-
Sanchez-Valdez, we would not address it here. 2 Sanchez-Valdez’s other

arguments, as stated in his response to his counsel’s Anders brief, are equally

unavailing and present no non-frivolous issue for appeal.



                                  CONCLUSION

      We have carefully reviewed the record and Sanchez-Valdez’s arguments

and can identify no non-frivolous basis for an appeal. We therefore GRANT

Sanchez-Valdez’s counsel’s request to withdraw and we DISMISS this appeal.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




      2
       To the extent Sanchez-Valdez is arguing that his counsel in the Adams
County case was ineffective, we do not address that issue either, as this is not the
proper forum or proceeding in which to make such a claim.

                                        -10-
