                                                                          FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                       April 11, 2011
                    UNITED STATES COURT OF APPEALS
                                                                   Elisabeth A. Shumaker
                                                                       Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 09-1551
          v.                                             (D. of Colo.)
 MICHAEL LEE MONTOYA,                            (D.C. No. 09-CR-288-CMA)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges. **


      Michael Lee Montoya was convicted by a federal jury on five counts

related to bank robbery. He appeals his conviction and sentence. Montoya’s

counsel, finding no meritorious grounds for an appeal, moves to withdraw

pursuant to Anders v. California, 386 U.S. 738 (1967). We have jurisdiction




      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
under 28 U.S.C. § 1291. We GRANT counsel’s motion to withdraw and

DISMISS Montoya’s appeal.

                                 I. Background

      In April 2009, a man, wearing a bright blue hat and carrying a black Wells

Fargo bank bag, robbed the Pine River Valley Bank in Durango, Colorado. After

presenting a lengthy demand note to a teller, he showed her a hypodermic syringe

with an orange top. He then fled after taking about $4,000 from her.

      The robber’s description was circulated to neighboring banks in Durango.

Five weeks later, the branch manager of the Bank of San Juans, which is directly

across the street from the Pine River Valley Bank, noticed a man matching the

robber’s description acting suspiciously outside her building. The man was

wearing a bright blue hat with an “F” logo on the back. After looking through the

glass bank doors and walking away, the man looped around and began

approaching the side of the bank from an alley. At this point, the branch manager

called 911, and she asked a teller to watch where the man was walking. The teller

lost sight of the man after he passed the drive-through window, but he never

entered the bank.

      An hour later, two men robbed the Community Banks of Colorado in

Cortez, Colorado. While his accomplice waited in the getaway vehicle, a tan and

maroon Ford Bronco, one of the men, wearing a blue Florida Gators baseball cap,

entered the bank. He then pulled a handgun on a teller and demanded money.

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After taking $4,576, the robber fled, escaping in the getaway vehicle. As the

Ford Bronco sped out of an adjacent parking lot, its front passenger-side tire

struck a curb, and a cigarette butt and tire marks were left at the scene.

      Eyewitnesses saw the robber’s escape, and a description of the Ford Bronco

was aired to law enforcement. Shortly thereafter, an off-duty officer stopped a

similar vehicle, with scuff marks on a tire that were consistent with recently

striking a curb. After one of the eyewitnesses identified the stopped Ford Bronco

as the getaway vehicle, the driver, James McBride, was arrested. McBride’s

vehicle contained a cell phone and a traffic ticket from the morning of the bank

robbery, both of which linked him to Montoya. McBride later confessed to

involvement in the Community Banks robbery, the Pine River Valley Bank

robbery, and the attempted robbery of the Bank of San Juans. He named Montoya

as his co-conspirator and testified against him at trial.

      In addition, both of the robbed tellers identified Montoya in photo line-ups.

The branch manager and teller at the Bank of San Juans testified about their

observations of the suspicious man outside their building. Moreover, the

videotape of a nearby business demonstrated that, during the attempted robbery of

that bank, a tan and maroon Ford Bronco was circling the area.

      Finally, investigating officers obtained search warrants and other court

orders that uncovered additional evidence. Montoya’s cell phone records

indicated many calls and texts between Montoya’s phone and the phone recovered

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in McBride’s vehicle, including an early-morning text message stating,

“Whenever you are ready, Loco.” Montoya’s phone was eventually recovered

inside his yellow Dodge pickup truck, the vehicle McBride was driving on the

morning of the robberies when he was ticketed. A search of Montoya’s family

home in Farmington, New Mexico, produced circumstantial evidence of bank

hold-up notes, bank bags, disguises, hypodermic needles with orange caps, and

correspondence linking Montoya to the crimes.

      In June 2009, a federal grand jury indicted McBride and Montoya on one

count of armed bank robbery in connection to the Community Banks robbery. In

August 2009, a superseding indictment added a second count of armed bank

robbery based on the Pine River Valley Bank robbery, and a count of using a

firearm during a crime of violence based on the Community Banks robbery. Less

than two weeks later, a second superseding indictment was issued, adding two

more counts: attempted bank robbery in connection with the Bank of San Juans

incident, and conspiracy to commit bank robbery.

      McBride entered into a plea agreement with the government in exchange

for cooperating and testifying against Montoya; he received a sentence of 3.5

years. Montoya pleaded not guilty and was tried before a federal jury, which

convicted him of all five counts. Although the government strongly supported the

presentence investigation report (PSR) recommendation of a sentence of 30 years’




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imprisonment, the district court sentenced Montoya to a below-guidelines

sentence of 20 years’ imprisonment.

      Following Montoya’s timely notice of appeal, his counsel filed an Anders

brief explaining that, after reviewing the record and completing the necessary

research, he determined the appeal had no merit. Montoya was granted additional

time to file a response to that brief, but he has not done so. The government filed

a notice of its intention not to file an answer brief in this appeal.

                                    II. Discussion

      Under Anders v. California, 386 U.S. 738 (1967), defense counsel may

“request permission to withdraw where counsel conscientiously examines a case

and determines that any appeal would be wholly frivolous.” United States v.

Calderon, 428 F.3d 928, 930 (10th Cir. 2005). If counsel makes that

determination, he may “submit a brief to the client and the appellate court

indicating any potential appealable issues based on the record.” Id. The client

may also submit arguments to the court in response. We must then fully examine

the record “to determine whether defendant’s claims are wholly frivolous.” Id. If

we find they are, we may dismiss the appeal.

      The Anders brief submitted by Montoya’s counsel identifies three issues

that Montoya would like to appeal: (1) the evidentiary decision to permit

testimony that bank hold-up notes were found in the Farmington residence, (2) the




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effectiveness of trial counsel’s assistance, and (3) the reasonableness of the

sentence. We address each of these in turn.

A. The Bank Hold-Up Notes

      Evidentiary rulings “generally are committed to the very broad discretion

of the trial judge, and they may constitute an abuse of discretion only if based on

an erroneous conclusion of law, a clearly erroneous finding of fact or a manifest

error in judgment.” Webb v. ABF Freight Sys., Inc., 155 F.3d 1230, 1246 (10th

Cir. 1998). Even if the court finds an erroneous evidentiary ruling, a new trial

will be ordered only if the error affects the substantial rights of the party. Id.

(citing Hinds v. GM, 988 F.2d 1039, 1049 (10th Cir. 1993)).

      The government has not contended any of the hold-up notes found in the

Farmington residence were used during the Pine River Valley Bank robbery. But

both the demand note used during the robbery and the discovered hold-up notes

were lengthy. On the third day of trial, outside the presence of the jury,

Montoya’s defense counsel objected to the admission of the hold-up notes’

content on the grounds that the notes contained inflammatory language and could

prejudice the jury. But defense counsel indicated he was willing to stipulate to

the fact that hold-up notes were found at the house, so long as their content was

not revealed.

      Later that day, after reviewing the hold-up notes, the district court excluded

the content of the notes after finding they “contain explicit information that may

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lead the jury to infer that the author or owner of the notes participated or planned

to participate in bank robberies which are not charged in this case.” R., Vol. 3 at

425. Thus, the notes were received as exhibits but were not shown to the jury.

But the court permitted discussion or testimony regarding the existence of the

notes and the fact they were taken from the residence. Id.

      The district court did not abuse its discretion in permitting testimony

regarding the discovery of bank hold-up notes. The existence of the notes was

highly probative, since it linked Montoya to the Pine River Valley Bank robbery.

The length of the discovered notes was also relevant, since it corresponded to the

length of the note used in that robbery. 1 Because the prejudicial effect of these

hold-up notes was greatly diminished when the actual content of the notes was

excluded, the permitted testimony was not improper.

B. The Effectiveness of Trial Counsel

      Montoya contends his counsel’s performance was objectively deficient and

deprived him of a fair trial with a reliable result. See Fox v. Ward, 200 F.3d

1286, 1295 (10th Cir. 2000) (citing Strickland v. Washington, 466 U.S. 668, 687

(1984)). In a letter requesting a time extension to file a response to the Anders

brief, Montoya avers his counsel “rushed the case to trial and didn’t properly

      1
         A police officer involved in the search of the residence, testified that
three hold-up notes, each typed, were found. One note was nearly an entire page,
another was about two-thirds of a page, and the third was a little less than half a
page in length. Similarly, the Pine River Valley Bank teller testified she only
skimmed the demand note that was given to her because it was fairly long.

                                         -7-
investigate an alibi defense,” although he gives no further details as to what this

alibi defense would be. In response, defense counsel contends Montoya was a

voluntary and knowing participant in a strategic decision to push speedy time

requirements. The objective of this strategy was to force the government to

prepare its multiple bank robbery cases against Montoya in a single trial, which

would not give the government adequate time to complete DNA matching and

other forms of identification.

      To prevail on his ineffective assistance of counsel claim, Montoya “must

overcome the strong presumption that ‘counsel’s conduct falls within the wide

range of reasonable professional assistance.’” United States v. Smith, 10 F.3d

724, 728 (10th Cir. 1993) (quoting Strickland, 466 U.S. at 689). Furthermore,

strategic decisions are constitutionally ineffective only if they are “completely

unreasonable, not merely wrong, so that they bear no relationship to a possible

defense strategy.” Fox, 200 F.3d at 1296. Indeed, under Strickland, “strategic

choices made after thorough investigation of law and facts relevant to plausible

options are virtually unchallengeable; and strategic choices made after less than

complete investigation are reasonable precisely to the extent that reasonable

professional judgments support the limitations on investigation.” 466 U.S. at

690–91.

      Montoya’s ineffective assistance of counsel claims is not appropriate for

review by this court on direct appeal, due to the insufficiency of the record.

                                         -8-
Except in rare circumstances not present here, “[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). When

ineffective assistance of counsel claims are pursued on direct appeal, they “are

presumptively dismissible, and virtually all will be dismissed.” Id. This rule is

based on the following rationale:

      A factual record must be developed in and addressed by the district
      court in the first instance for effective review. Even if evidence is
      not necessary, at the very least counsel accused of deficient
      performance can explain their reasoning and actions, and the district
      court can render its opinion on the merits of the claim.

Id.

      Because the record is insufficient for us to properly assess it on direct

appeal, we dismiss Montoya’s ineffective assistance of counsel claim.

C. The Sentencing Decision

      We review sentences for procedural and substantive reasonableness. See

United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006). When a defendant

is sentenced within a properly-calculated guidelines range, the sentence “is

entitled to a rebuttable presumption of reasonableness.” Id. at 1054. “The

defendant may rebut this presumption by demonstrating that the sentence is

unreasonable in light of the other sentencing factors laid out in [18 U.S.C.]

§ 3553(a).” Id. at 1055. These factors include “the nature and circumstances of

the offense[,] the history and characteristics of the defendant[,] the need for the

                                         -9-
sentence imposed . . . to afford adequate deterrence to criminal conduct[, and] the

need to avoid unwarranted sentencing disparities among defendants with similar

records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a).

      Montoya’s counsel asserts the district court calculated the guidelines range

properly and made no procedural errors. We agree, and thus we presume the

sentence to be reasonable. The advisory guidelines sentencing range was 30

years’ to life imprisonment. However, the district court sentenced Montoya to

only 20 years’ imprisonment, significantly below the advisory range. The court

explained:

      Although a career offender, the Court believes the guideline range is
      unreasonable when considering 18 U.S.C. § 3553 factors. Four of
      the defendant’s 9 felonies were committed more than 10 years ago,
      when he was 18, and during what appears to be a 2½ month crime
      spree.

R., Vol. 1 at 186.

      Although McBride received a much shorter sentence than Montoya, the

district court properly concluded the difference did not constitute a disparity

under § 3553 because the two defendants were not similarly situated. McBride

had previously been convicted of only one drug possession felony, and he pleaded

guilty to a single count of aiding and abetting armed robbery. In contrast,

Montoya had been convicted of nine previous felonies, and he was tried and

found guilty of five serious counts, including two counts of armed robbery.




                                         -10-
      Not only did the district court properly consider § 3553 factors, but it

sentenced Montoya to a decade below the minimum advisory sentence in light of

them. As a result, the sentence is substantively reasonable.

                                 III. Conclusion

      We conclude no meritorious appellate issue exists. Accordingly, we

GRANT counsel’s motion to withdraw and DISMISS Montoya’s appeal.

Montoya’s motion requesting appointment of new counsel is DENIED.

                                               ENTERED FOR THE COURT

                                               Timothy M. Tymkovich
                                               Circuit Judge




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