                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        July 13, 2006
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court


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

               Plaintiff - Appellee,                    No. 05-2164
          v.                                           D. New M exico
 M A RIO A LFO N SO BEJA RA NO,                  (D.C. No. CR-04-233 M V)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before TA CH A, Chief Circuit Judge, HA RTZ, and TYM KOVICH, Circuit
Judges.


      M ario Alfonso Bejarano pleaded guilty to conspiracy to possess with intent

to distribute over 500 grams of a mixture containing methamphetamine, and was

sentenced to 120 months’ imprisonment. He appealed and his counsel has filed

an Anders brief stating the issues that could possibly be raised on appeal and

explaining why they have no merit. See Anders v. California, 386 U.S. 738


      *
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
(1967). M r. Bejarano w as sent a copy of his counsel’s Anders brief and motion to

withdraw, and was directed to respond by April 24, 2006. He did not respond.

After reviewing the record, we agree that there are no meritorious issues to be

raised on appeal. W e grant counsel’s motion to withdraw and dismiss the appeal.

      According to the plea agreement, M r. Bejarano was a passenger in a car

when it was stopped for speeding on Interstate 40 in New M exico. A consent

search of the vehicle revealed 20 packages of methamphetamine. He was

arrested, and agreed to plead guilty to count 1 of a tw o-count indictment. A

presentence report (PSR) assigned M r. Bejarano three criminal-history points,

placing him in criminal-history category II, which, combined w ith a total offense

level of 25, created a guidelines sentencing range of 63-78 months. The PSR also

noted, however, that a 10-year mandatory minimum sentence applied.

M r. Bejarano filed an objection to the PSR, contending that because the

guidelines had been rendered advisory by United States v. Booker, 543 U.S. 220

(2005), “someone such as M r. Bejarano can be horizontally moved from Criminal

History category II to I and be eligible for safety valve,” R. Vol. 2 Add. at 1,

which would permit the court to sentence under the guidelines rather than impose

the mandatory minimum. See United States Sentencing Guidelines § 5C1.2 (court

shall impose a sentence w ithin guidelines range, without regard to statutory

minimum sentence, if, among other things, “the defendant does not have more




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than 1 criminal history point”); 18 U.S.C. § 3553(f) (same). The district court

ruled that M r. Bejarano was not eligible for safety-valve relief.

      The procedure for appointed counsel to withdraw on appeal is set out in

Anders, 386 U.S. at 744:

      [I]f counsel finds his case to be w holly 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.

In her Anders brief, counsel for M r. Bejarano states that M r. Bejarano’s criminal-

history points render him ineligible under 18 U.S.C. § 3553(f)(1) for the safety-

valve provision and that Booker does not give the district court discretion to

modify criminal-history points to make a defendant eligible for safety-valve

relief. W e agree with counsel. See United States v. Brehm, 442 F.3d 1291, 1300

(11th Cir. 2006) (“Booker did not render the calculation of eligibility

requirements for safety-valve relief advisory”); United States v. Barrero, 425

F.3d 154, 156-58 (2d Cir. 2005) (same); United States v. M cKoy, No. 05-2461,

2006 W L 1668061, at *4 (3d Cir. June 19, 2006) (same); see also United States v.

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Payton, 405 F.3d 1168, 1173 (10th Cir. 2005) (finding facts that make the

defendant ineligible for safety-valve relief does not violate Booker). Nor do w e

see anything else in the record that would present a nonfrivolous issue on appeal.

W e note that the district court expressed concern about whether M r. Bejarano had

received proper advice concerning the plea agreement. But when questioned

whether he knew that he was “going to be getting 120 months,” he responded, “I

knew it.” R. Vol. 4 at 24. In any event, “[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) (en banc).

      After an independent review of the record, we agree that any potential issue

to be raised on appeal would be “wholly frivolous.” Anders, 386 U.S. at 744. W e

therefore GRANT counsel’s motion to withdraw and DISM ISS the appeal.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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