                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          JUN 5 2001
                          FOR THE TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
                                                       No. 00-3124
 v.                                          (D.C. No. CR-99-10057-14-MLB)
                                                       (D. Kansas.)
 SILVESTRE GUEBARA,

              Defendant - Appellant.


                           ORDER AND JUDGMENT           *




Before BRORBY , McKAY , and LUCERO , Circuit Judges.


      Appellant Silvestre Guebara was indicted for conspiracy to knowingly

possess with intent to distribute 1000 kilograms of a mixture or substance

containing a detectable amount of marijuana in violation of 21 U.S.C.

§§ 841(a)(1) and 846 and for knowingly possessing with intent to distribute

approximately 100 pounds of a mixture or substance containing a detectable

amount of marijuana in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1). In


      *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2); 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judgment is not binding precedent, except under the doctrines of law of the case,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. 36.3.
exchange for the government’s agreement to dismiss the conspiracy count,

appellant entered a plea of guilty to possession with intent to distribute. The

district court accepted appellant’s plea and ordered preparation of a presentence

investigation report (“PSR”).

      Apparently pursuant to the PSR, which recommended a two-level offense

level reduction for acceptance of responsibility, the district court sentenced

appellant to sixty-three months imprisonment, six years of supervised release, a

$100 assessment, and ineligibility for all federal benefits for a period of five

years. Appellant challenges the sentence on two grounds: first, that the

sentencing court double counted a 1994 battery conviction in calculating his

criminal history category, and second, that the court should have decreased his




                                         -2-
offense level under U.S.S.G. § 3B1.2 for minor participation.     1
                                                                      Exercising

jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, we affirm.

       In sentencing appeals, “[w]e review the district court’s factual findings

under the clearly erroneous standard and review its applications of the Sentencing

Guidelines de novo.”        United States v. Roberts , 185 F.3d 1125, 1144 (10th Cir.

1999) (citation omitted),     cert. denied , 120 S. Ct. 1960 (2000). We “‘giv[e] due



       1
          Appellant’s appointed counsel filed an   Anders brief characterizing this
appeal as frivolous. See Anders v. California , 386 U.S. 738, 744 (1967)
(permitting counsel who considers an appeal to be wholly frivolous to advise the
court of that fact, request permission to withdraw from the case, and submit a
brief referring to portions of the record that arguably support the appeal). He
filed a motion asking for permission to withdraw and appointment of new
counsel for the appeal.
        In return, appellant filed a response suggesting that he has received
ineffective assistance of counsel. (Appellant’s Resp. at 1 (“My attorney has
failed from the beginning of my sentencing.”).) For reasons stated in     United
States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995), the Court will not pass
on the ineffective assistance of counsel issue at this time:

       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. . . .
              The reasons for this rule are self-evident. . . . A factual record
       must be developed in and addressed by the district court in the first
       instance for effective review.

        We note that appellant’s counsel did not designate the transcript of the
sentencing hearing as part of the record on appeal. Appellant states in his
response, “My attorney has failed to send me transcripts from my sentencing after
. . . 10 letters written to him.” (Appellant’s Resp. at 2.) We conclude that
appellant’s challenges can be resolved without the transcript.

                                             -3-
deference to the district court’s application of the guidelines to the facts.’”

United States v. Vallo , 238 F.3d 1242, 1250 (10th Cir. 2001) (quoting    United

States v. Patron-Montano , 223 F.3d 1184, 1188 (10th Cir. 2000)). The

government argues that a plain error standard of review should apply in this

appeal because appellant did not make his arguments before the sentencing court.

As explained below, our review of the record would require us to reject

appellant’s arguments even if we assumed that he properly preserved his

objections during sentencing.

       Appellant bases his first argument—that the district court double counted

his 1994 battery conviction in computing his criminal history category—on his

copy of the original version of the PSR, which included two references to the

same crime. The double counting in the original PSR, however, was harmless

because it did not affect the final criminal history calculation. In addition, the

PSR was revised before the sentencing date to omit the double reference. This

aspect of the district court’s sentencing was not erroneous.   2




       2
         Appellant’s Response appears to challenge another aspect of his criminal
history computation. He states, “I also feel the Courts failed to supply adequate
information on Page 10 of my [PSR] on a D.U.I. making it unfair to use [it] . . .
and allow one point for this offense.” (Appellant’s Resp. at 1.) Although the
PSR excluded the date of that offense as unknown, it did include other
information—the court in which appellant pleaded guilty, the docket number, the
date of sentencing, and the sentence—making it fair to include the offense in
calculating his criminal history category.

                                            -4-
       Similarly, the sentencing court did not err by failing to decrease appellant’s

offense level for minor participation sua sonte. Under U.S.S.G. § 3B1.2(b), the

sentencing court “may grant a two-point reduction if the defendant proves by a

preponderance of the evidence [he] acted as a minor participant in the offense.”

United States v. Chavez , 229 F.3d 946, 956 (10th Cir. 2000) (citing   United States

v. Lockhart , 37 F.3d 1451, 1455 (10th Cir. 1994));   see United States v.

Santistevan , 39 F.3d 250, 254 (10th Cir. 1994) (“It is the defendant’s burden to

establish, by a preponderance of the evidence, his entitlement to an offense level

reduction under § 3B1.2.” (citations omitted)). It was appellant’s, not the

sentencing court’s, burden to raise and prove that he was entitled to the decrease

in offense level.   3




       3
         As mentioned above, appellant entered a plea of guilty to possession
with intent to distribute in exchange for the government’s promise to dismiss the
greater conspiracy count. If appellant had sought a decrease in offense level
under § 3B1.2(b), it would have been a difficult sell. As the commentary
accompanying the sentencing guideline states,

       If a defendant has received a lower offense level by virtue of being
       convicted of an offense significantly less serious than warranted by
       his actual criminal conduct, a reduction for a mitigating role under
       this section ordinarily is not warranted because such defendant is not
       substantially less culpable than a defendant whose only conduct
       involved the less serious offense.

U.S.S.G. § 3B1.2(b) cmt. 4.
       Appellant attacks as false a Drug Enforcement Agency official’s testimony
to the effect that appellant was not a minor participant in an offense. Because the
                                                                       (continued...)

                                          -5-
      Counsel’s motion to withdraw is    GRANTED . Appellant’s motion to have

counsel appointed is   DENIED , and his sentence is   AFFIRMED.



                                               Entered for the Court


                                               Carlos F. Lucero
                                               Circuit Judge




      3
        (...continued)
district court did not have a duty to decrease sua sponte appellant’s offense level,
the attack is to no avail.

                                         -6-
