                                                              FILED
                                                   United States Court of Appeals
                                                           Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                 November 6, 2007
                                   TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                        No. 07-1124
 v.                                             (D.C. No. 06-cr-00316-M SK)
                                                         (D . Colo.)
 EFR AIN CA RD EN A S-PU LID O,

          Defendant-Appellant.



                                OR DER AND JUDGM ENT *


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


      Efrain Cardenas-Pulido, a citizen of M exico, appeals his sentence of 46

months’ imprisonment imposed following his guilty plea for illegal reentry into

the U nited States in violation of 8 U.S.C. § 1326(a) & (b)(2). Cardenas-Pulido’s

counsel moves for leave to withdraw from the case in a brief filed pursuant to

Anders v. California, 386 U.S. 738 (1967). Because we conclude that the




      *
        The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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. 32.1.
arguments raised by Cardenas-Pulido are frivolous, we AFFIRM his sentence,

DISM ISS the appeal, and GR A NT counsel’s motion to withdraw.

                                          I

      In M ay 2002, Cardenas-Pulido was convicted in Colorado state court of

possession with intent to distribute marijuana, which the Immigration and

Nationality Act defines as an aggravated felony. See 8 U.S.C. §§ 1101(a)(43),

1326(b)(2). As a result of that conviction, an immigration judge ordered

Cardenas-Pulido to be deported from the United States to M exico. Desiring to

provide greater financial support for his wife and daughter, however, Cardenas-

Pulido was not content to remain in M exico. In early 2006, he reentered the

United States to search for better employment.

      Cardenas-Pulido’s search came to an abrupt halt in M ay of that year when

Colorado state law enforcement officials arrested him for a violation of state law.

On July 19, 2006, approximately two months after his initial detention by the

state, he was transferred to the custody of the U.S. Bureau of Immigration and

Customs Enforcement.

      On August 7, 2006, a federal grand jury indicted Cardenas-Pulido for

illegal reentry into the United States subsequent to deportation for the

commission of an aggravated felony in violation of 8 U.S.C. § 1326(a) & (b)(2).

As a result of that charge, Cardenas-Pulido entered into a written plea

arrangement with the government, in which he agreed to plead guilty to the

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offense charged. In exchange, the government promised to recommend a sentence

at the bottom of the applicable Sentencing Guidelines range and to move for a

one-point offense level reduction for acceptance of responsibility.

      Cardenas-Pulido’s Presentence Report (“PSR”) calculated an adjusted total

offense level of 17 and a criminal history category of VI. Taken together, these

sentencing considerations provided for a Guidelines range of 51 to 63 months’

imprisonment. Prior to his sentencing hearing, however, Cardenas-Pulido moved

for a downward departure pursuant to U.S.S.G. § 4A1.3(b)(1), arguing that the

PSR overrepresented the seriousness of his criminal history. He did not ask the

court to grant a variance under 18 U.S.C. § 3553(a).

      At his M arch 19, 2007 sentencing hearing, the government agreed with the

departure argument and recommended both that Cardenas-Pulido’s criminal

history category be reduced to V and that the court sentence him at the low end of

the revised Guidelines range of 46 to 57 months’ imprisonment. Adopting the

parties’ recommendations, the district court found “good grounds” to depart under

U.S.S.G. § 4A1.3(b)(1) and, after analyzing the factors required under 18 U.S.C.

§ 3553(a), imposed a sentence of 46 months’ imprisonment and three years of

supervised release. This timely appeal followed.



                                         II




                                        -3-
      If an attorney conscientiously examines a case and determines that any

appeal would be wholly frivolous, counsel may “so advise the court and request

permission to withdraw.” Anders, 386 U.S. at 744. Counsel must submit a brief

to both the appellate court and the client, pointing to anything in the record that

would potentially present an appealable issue. The client may then choose to

offer any argument to the court. If, upon complete examination of the record, the

court determines that the appeal is in fact frivolous, it may grant counsel’s request

to withdraw and dismiss the appeal. Id. In the present case, acting pursuant to

Anders, counsel provided Cardenas-Pulido with a copy of the appellate brief, and

C ardenas-Pulido has filed a pro se brief in response. In his pro se brief, which w e

construe liberally, see Haines v. Kerner, 404 U .S. 519, 520 (1972), Cardenas-

Pulido raises three allegedly nonfrivolous issues for our consideration. W e

address each argument in turn.

                                          A

      Cardenas-Pulido first argues that he received ineffective assistance of

counsel in the court below. Specifically, he asserts that his counsel was

ineffective in failing to: (1) advise him of his right to appeal; (2) “negotiate a

more reasonable deal with the government”; (3) argue mitigating factors to

support a lower sentence; (4) object to the imposition of supervised release; and

(5) instruct or advise him on how to speak to the sentencing judge.



                                         -4-
      In this circuit, except in rare circumstances, claims of ineffective assistance

of counsel must be presented in collateral proceedings. United States v.

Gallow ay, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). “Rare circumstances”

generally exist only when there is a fully developed factual record before this

court. Id. at 1240-41. The rule exists to allow a district court to appropriately

develop the factual record in the first instance. See M assaro v. United States, 538

U.S. 500, 505-06 (2003). It also ensures that we have an appropriate record on

which to base a decision. Galloway, 56 F.3d at 1240. Thus, we have adopted a

rule that claims of ineffective assistance of counsel brought on direct appeal are

“presumptively dismissible.” Id.

      Our review of the record convinces us that Cardenas-Pulido’s current

claims of ineffective assistance of counsel do not fall into the narrow category of

claims that require no further development. Cf. United States v. Smith, 10 F.3d

724, 728 (10th Cir. 1993) (finding the record sufficient to review an ineffective

assistance of counsel claim on direct appeal where defense counsel averred to

mistakenly omitting a jury instruction on a lesser included offense). His claims

are therefore unsuitable for review on direct appeal. Accordingly, if Cardenas-

Pulido intends to pursue these claims further, he must raise them in a collateral

proceeding pursuant to 28 U.S.C. § 2255.

                                          B



                                         -5-
      Cardenas-Pulido next argues that his sentence is substantively unreasonable

under United States v. Booker, 543 U.S. 220 (2005). He asserts that the district

court erred in imposing a within-Guidelines sentence because his conviction of

simple illegal reentry into the United States is not sufficiently serious to warrant

the sentence he received. Under the factors set forth in 18 U.S.C. § 3553(a), he

argues that he merits a non-Guidelines sentence. He also contends that because

he is not legally within the United States and will therefore be deported when he

completes his term of imprisonment, no purpose is served by incarcerating him

for 46 months.

      Post-Booker, we review a sentence for reasonableness. See United States

v. K ristl, 437 F.3d 1050, 1053 (10th Cir. 2006). In conducting this analysis, we

review the district court’s factual findings for clear error and its legal

determinations de novo. United States v. Serrata, 425 F.3d 886, 906 (10th Cir.

2005). W e also apply a presumption that a sentence falling within a properly

calculated Guidelines range is reasonable. 1 Kristl, 437 F.3d at 1054.

      Cardenas-Pulido’s reasonableness argument is frivolous. At his sentencing

hearing, he never objected to the court’s calculation of the relevant sentencing

range based on his PSR, and he failed to argue for a variance under the 18 U.S.C.


      1
        Our circuit’s use of an appellate presumption of reasonableness for those
sentences falling within a properly calculated Guidelines range was recently
upheld by the Supreme Court in Rita v. United States, 127 S. Ct. 2456, 2462-68
(2007).

                                          -6-
§ 3553(a) factors. In fact, his only argument before the court below was that he

should receive a departure under U.S.S.G. § 4A1.3(b)(1) because the PSR

overrepresented his criminal history. The court agreed with that argument and

proceeded to sentence him to the bottom of the revised Guidelines range.

M oreover, the court properly considered the § 3553(a) factors in determining his

sentence. In short, because Cardenas-Pulido has done nothing to overcome the

presumption that his sentence is reasonable, we conclude that, under the

circumstances presented, Cardenas-Pulido’s sentence is in fact reasonable.

                                          C

      Finally, Cardenas-Pulido argues that the district court exceeded its

authority by imposing a sentence that includes three years of supervised release

when the statute under which he was convicted “does not mandate” that any

supervised release be imposed. This argument is meritless. Under 18 U.S.C. §

3583(a), a district court that imposes a term of imprisonment “may include as a

part of the sentence a requirement that the defendant be placed on a term of

supervised release after imprisonment . . . .” In determining whether to include a

term of supervised release, the district court has broad discretion so long as its

decision is consistent with the factors set forth in § 3553(a). See United States v.

Edgin, 92 F.3d 1044, 1048 (10th Cir. 1996). As we have already recognized, the

sentencing judge appropriately considered each of the relevant factors at the time



                                         -7-
it sentenced Cardenas-Pulido. It also acted well within its discretion when it

imposed a term of supervised release. Cardenas-Pulido’s argument that the

district court erred in doing so is therefore frivolous.

      Because Cardenas-Pulido has failed to present us with any meritorious

grounds for appeal, we AFFIRM his sentence, DISM ISS the appeal, and

G R A N T counsel’s motion to w ithdraw.



                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero
                                        Circuit Judge




                                          -8-
