                                                                   FILED
                                                       United States Court of Appeals
                        UNITED STATES COURT OF APPEALS         Tenth Circuit

                              FOR THE TENTH CIRCUIT                       October 22, 2018
                          _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
    UNITED STATES OF AMERICA,

         Plaintiff - Appellee,

    v.                                                         No. 18-7027
                                                    (D.C. No. 6:17-CR-00081-RAW-1)
    AICHU SAESEE, a/k/a Chava Seechan,                         (E.D. Okla.)
    a/k/a Aichu Johnnie Saesee, a/k/a Aicho
    Johnnie Saesee, a/k/a Aichu Chava
    Seechan, a/k/a Aichu Chava Saesee, a/k/a
    Johnny Aichu Saesee, a/k/a Johnny Alcho
    Saesee, a/k/a Alchu Saesee,

         Defendant - Appellant.
                        _________________________________

                              ORDER AND JUDGMENT *
                          _________________________________

Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
                  ________________________________

         Defendant Aichu Saesee pleaded guilty to violating 21 U.S.C. § 841 for

possessing 50 grams or more of actual methamphetamine with intent to distribute.

Defendant’s counsel filed a brief in accordance with Anders v. California, 386 U.S. 738

(1967), and moved for leave to withdraw. Defendant submitted a supplemental response


*
  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 This order and judgment is not binding precedent, except under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. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R.
32.1.
on his own behalf. The government declined to submit a brief. We grant counsel’s

motion to withdraw and dismiss this appeal.

       After Defendant entered an unconditional guilty plea to the charge, the probation

office prepared a presentence report (PSR). It calculated a base offense level of 32 based

on Defendant’s possession of 257 grams of actual methamphetamine. See USSG

§ 2D1.1(c)(4). Three offense levels were subtracted for acceptance of responsibility. See

USSG § 3E1.1. With Defendant’s criminal history calculated as category VI, his

guidelines sentencing range was 151 to 188 months’ imprisonment. Neither party

objected to the PSR. Defense counsel filed a motion requesting a 120-month sentence.

The district court declined to grant a variance and sentenced Defendant on May 16, 2018,

to 151 months in custody, followed by five years of supervised release. On May 24

defense counsel filed a Motion to Correct Sentence, claiming that the original PSR

miscalculated the criminal-history category as VI instead of V, so that the correct

guideline range was 140 to 175 months. The district court granted the motion and

amended the custodial sentence to 140 months. On May 22, 2018, Defendant filed a pro

se notice of appeal.

       Under Anders if an attorney examines a case and determines that an appeal desired

by his client 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 could potentially

present an appealable issue. See id. The client may then choose to offer argument to the

court. See id. If, upon close examination of the record, the court determines that the


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appeal is frivolous, it may grant counsel’s request to withdraw and dismiss the appeal.

See id.

          Defendant’s counsel submits, and we have confirmed from the record, that there

are no nonfrivolous grounds on which Defendant may challenge either the procedural or

substantive reasonableness of his sentence. A sentence that is within the advisory

guideline range is presumed reasonable. See United States v. Kristl, 437 F.3d 1050, 1055

(10th Cir. 2006). Based on a review of the record, we find no basis on which this

presumption may be overcome. The district court corrected the error in the calculation of

Defendant’s guideline range and thereafter sentenced him to the shortest sentence within

that range. As for the five-year term of supervised release, the statute requires a

minimum supervised release term of five years. See 21 U.S.C. § 841(b)(1)(A).

          Defendant’s response to counsel’s Anders brief raises only the issue of ineffective

assistance of counsel. But ineffective-assistance claims should be pursued through a

motion under 28 U.S.C. § 2255 and not on direct appeal. See United States v. Galloway,

56 F.3d 1239, 1240 (10th Cir. 1995).

          We GRANT defense counsel’s motion to withdraw and dismiss the appeal.


                                                Entered for the Court


                                                Harris L Hartz
                                                Circuit Judge




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