                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                     UNITED STATES COURT OF APPEALS March 3, 2009
                                                               Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                  Clerk of Court



    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 07-2100
                                                  (D.C. No. 06-CR-0907-JB)
    FRANCISCO ESTANISLAO                                  (D. N.M.)
    MENDOZA,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before BALDOCK, BRORBY, and EBEL, Circuit Judges.



         Francisco Estanislao Mendoza pleaded guilty to reentry of a deported alien

previously convicted of an aggravated felony and was sentenced to 57 months’

imprisonment. He appeals, challenging his sentence. His appointed counsel,

James Baiamonte, filed an Anders brief and moved to withdraw as counsel. See

Anders v. California, 386 U.S. 738, 744 (1967). Mr. Mendoza responded to the


*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Anders brief, seeking appointment of new appellate counsel and arguing–as best

we can discern–that Mr. Baiamonte provided ineffective assistance and that the

district court erred in denying Mr. Mendoza’s motion for new counsel. See Van

Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007) (observing that

pro se filings are “entitled to a solicitous construction”). The government

declined to submit a brief. We have considered the arguments raised in the

Anders brief and in Mr. Mendoza’s response and have also independently

reviewed the record. We conclude that there is no non-frivolous basis for appeal.

Counsel’s request to withdraw is therefore granted, and this appeal is dismissed

without prejudice to subsequent efforts to raise the issue of ineffective assistance

on collateral review. We also deny Mr. Mendoza’s request for appointment of

new appellate counsel.

                                 BACKGROUND

      In 1992, Mr. Mendoza was convicted in California of assault with intent to

commit rape, a felony for which he initially received a 6-month sentence but was

ultimately sentenced to 2 years’ imprisonment because of a probation violation.

Thereafter, he was deported to El Salvador. In February 2006, he was

apprehended in Luna County, New Mexico, and charged with illegal reentry by a

deported alien previously convicted of an aggravated felony, as defined in

8 U.S.C. § 1101(a)(43), in violation of 8 U.S.C. §§ 1326(a) and (b)(2). R., Vol. I,

Doc. 10.

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      In June 2006, Mr. Mendoza wrote a letter to the district court stating he did

not “feel as though [his] Attorney . . . ha[d] done anything to try to help [him].”

Id., Doc. 20 at 2. He also filed a motion for new counsel. The motion explained

that he had told counsel “he was ‘unhappy.’” Id., Doc. 22 at 2, ¶ 13. Distilled,

Mr. Mendoza argued that he was dissatisfied because “the potential incarceration

period [was] too long.” Id. ¶ 17. The district court held a hearing on the motion

and denied it without prejudice. Mr. Mendoza did not renew the motion.

      In August 2006, Mr. Mendoza pleaded guilty to the aforementioned charge.

The Presentence Investigation Report calculated a total offense level of 21 (a base

offense level of 8, a 16-point enhancement because of his 1992 felony conviction,

and a 3-point reduction for acceptance of responsibility), and a criminal history

category of IV. This produced an advisory United States Sentencing Guidelines

range of 57 to 71 months’ imprisonment.

      Mr. Mendoza filed a sentencing memorandum in the district court

requesting a downward variance, and renewed that request at his sentencing

hearing. He argued that a variance was warranted because the crime-of-violence

enhancement did not match the actual seriousness of the offense. Specifically, he

claimed that the encounter resulting in his 1992 felony conviction was consensual

and that the initial 6-month prison term suggests that the crime was relatively

minor. See R., Vol. I, Doc. 34 at 7 (arguing in the sentencing memorandum that

6-month sentence “amounted to a petty misdemeanor sentence”).

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      Both at the sentencing hearing and in a thorough memorandum opinion and

order on sentencing, the district court denied Mr. Mendoza’s request for a

variance and sentenced him to 57 months’ imprisonment, the bottom of the

Guidelines’ advisory range. This appeal followed.

                                    ANALYSIS

      Anders authorizes counsel to seek permission to withdraw from an appeal

if, “after a conscientious examination,” counsel finds the appeal “wholly

frivolous.” 386 U.S. at 744.

      Under Anders, counsel must submit a brief to the client and the
      appellate court indicating any potential appealable issues based on
      the record. The client may then choose to submit arguments to the
      court. The [c]ourt must then conduct a full examination of the record
      to determine whether defendant’s claims are wholly frivolous. If the
      court concludes after such an examination that the appeal is
      frivolous, it may grant counsel’s motion to withdraw and may
      dismiss the appeal.

United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005) (citing Anders,

386 U.S. at 744).

      In this case, counsel’s Anders brief notes one possible basis for appeal.

Counsel suggests that, although Mr. Mendoza was sentenced at bottom of the

advisory Guidelines’ range, he “could argue that his sentence was unreasonable

and that the district judge did not adequately consider the statutory concerns other

than the advisory guidelines expressed in 18 U.S.C. §3553(a).” Aplt Br. at 5.

This assertion actually sets out two potential claims. First, that the sentence was


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procedurally unreasonable, in that the district court failed “‘to consider the

§ 3553(a) factors.’” United States v. Verdin-Garcia, 516 F.3d 884, 895 (10th Cir.

2008), cert. denied, 129 S. Ct. 161 (2008) (quoting Gall v. United States,

--- U.S. ---, 128 S. Ct. 586, 597 (2007)). Second, that the sentence was

substantively unreasonable “given all the circumstances of the case in light of the

factors set forth in 18 U.S.C. § 3553(a).” United States v. Conlan, 500 F.3d 1167,

1169 (10th Cir. 2007). “We review sentences for reasonableness under a

deferential abuse of discretion standard.” United States v. Haley, 529 F.3d 1308,

1311 (10th Cir. 2008), cert. denied, 129 S. Ct. 428 (2008) (citing Gall, 128 S. Ct.

at 591)).

      The transcript of the sentencing hearing and the district court’s

memorandum opinion and order on sentencing demonstrate that the district court

fully considered the statutory factors. It expressly discussed most of them,

including “the nature and circumstances of the offense and the history and

characteristics of the defendant,” 18 U.S.C. § 3553(a)(1), as well as “the need for

the sentence imposed” to promote certain statutory objectives, including “respect

for the law, . . . just punishment[,]” and “deterrence,” id. at (a)(2), even though

procedural reasonableness does not require that the district court “march through

§ 3553(a)’s sentencing factors” when rendering a sentence within the Guidelines’

range. United States v. Rines, 419 F.3d 1104, 1107 (10th Cir. 2005).




                                          -5-
      Considered substantively, within-Guidelines sentences are presumed to be

reasonable. Haley, 529 F.3d at 1311. Here, as the district court recognized,

nothing in Mr. Mendoza’s case suggests that a within-Guidelines sentence would

be unreasonable. The court acknowledged that it had authority to vary from the

Guidelines, and took into account Mr. Mendoza’s proffered reasons for a

downward variance: that he had reentered the United States to earn money to pay

for medical treatment for his girlfriend and for his mother, and that his 1992

conviction for assault with intent to commit rape is relatively minor (citing his

unsubstantiated version of events). On this basis, we see no grounds for arguing

that imposing a bottom-of-the-range 57-month sentence was beyond the district

court’s discretion. Nor is there any evidence that Mr. Mendoza’s plea was

unknowing or involuntary or lacked a factual basis. See United States v. Graham,

466 F.3d 1234, 1239 (10th Cir. 2006); United States v. Blair, 54 F.3d 639, 643-44

(10th Cir. 1995).

      Further, having carefully reviewed the record, we are satisfied that the

district court’s denial of Mr. Mendoza’s motion for new counsel was likewise not

an abuse of discretion. See United States v. Nichols, 841 F.2d 1485, 1504

(10th Cir. 1988). To the extent Mr. Mendoza takes issue with Mr. Baiamonte’s

effectiveness, such claims are ordinarily brought on collateral review, not on

direct appeal. See United States v. Brooks, 438 F.3d 1231, 1242 (10th Cir. 2006).

This is “to ensure that we are provided with a developed factual record of the

                                         -6-
events.” Id. Consequently, we dismiss Mr. Mendoza’s claims of ineffective

assistance of counsel without prejudice to his ability to raise this issue on

collateral review. See id. (holding such claims “presumptively dismissible”)

(quotation omitted). Finally, because we find no legal points arguable on their

merits, we deny Mr. Mendoza’s request for appointment of new appellate counsel.

See United States v. Delacruz-Soto, 414 F.3d 1158, 1168 n.6 (10th Cir. 2005)

(observing that counsel’s “mere filing of [an Anders] brief does not provide a

defendant with the right to the appointment of a new attorney”).

                                   CONCLUSION

      We have carefully considered counsel’s and Mr. Mendoza’s arguments and

independently reviewed the record, and we find that there is no non-frivolous

basis for appeal. Accordingly, we DISMISS the appeal without prejudice to

subsequent efforts to raise the issue of ineffective assistance of counsel on

collateral review, GRANT counsel’s motion to withdraw, and DENY

Mr. Mendoza’s request for appointment of new appellate counsel.



                                                     Entered for the Court



                                                     Wade Brorby
                                                     Circuit Judge




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