                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  March 17, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT


 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,

          v.                                            No. 08-4141
                                            (D.C. No. 07-CR-00572-TS-PMW-14)
 ARNULFO GARCIA-PENA,                                    (D. Utah)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.


      Defendant pled guilty to conspiracy to distribute heroin. The district court

sentenced him to an eighty-seven-month term of imprisonment, at the bottom of

the advisory Guideline range. Defendant filed a pro se notice of appeal

expressing his dissatisfaction with the length of his sentence and with his trial

counsel’s actions in persuading him to plead guilty and in representing him at



      *
        This order and judgment is not binding precedent, except under the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 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).
This case is therefore ordered submitted without oral argument.
sentencing. His appellate counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), explaining why counsel believes there to be no

reasonable grounds for appeal. Neither Defendant nor the government has filed a

response to counsel’s Anders brief.

       Defense counsel first notes the existence of an appellate waiver. However,

because the government did not itself invoke the appellate waiver, Defendant’s

appeal is not foreclosed by this. See United States v. Calderon, 428 F.3d 928,

931 (10th Cir. 2005). We therefore must consider under Anders whether there are

any non-frivolous issues upon which Defendant has a basis for appeal. See id. at

930.

       The first potential ground for appeal is the voluntariness of Defendant’s

plea of guilty. However, as appellate counsel points out, nothing in the record on

appeal supports a conclusion that the plea was not entered into knowingly and

voluntarily. The record shows that an interpreter read the plea agreement to

Defendant and that an interpreter was present during the change of plea hearing.

The record shows that the district court performed a plea colloquy in which

Defendant indicated that he knew and understood what was happening, that he

was fully satisfied with his counsel, and that he was entering his plea voluntarily.

Moreover, nothing in the record indicates that trial counsel materially

misinformed Defendant such that his plea should be considered involuntary.

       Second, Defendant could potentially appeal the procedural and substantive

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reasonableness of the sentence imposed by the district court. As for procedural

reasonableness, the only ground that was preserved for appeal relates to the

court’s rejection of Defendant’s request for a “minor participant” reduction.

After considering evidence that Defendant had negotiated for a role distributing

larger quantities of drugs than street-level dealers, the court found that Defendant

was not less culpable than most other participants in the conspiracy. Nothing in

the record suggests that this finding was clearly erroneous. Because trial counsel

made no other objections to the court’s calculation of the applicable Guidelines

range, Defendant would need to demonstrate plain error in order to call any other

aspects of the procedural reasonableness of his sentence into question. However,

nothing in the record suggests any error in the court’s calculation, much less error

that is plain.

       As for substantive reasonableness, Defendant indicates in his notice of

appeal that he believes his sentence to be substantively unreasonable because this

was his first criminal offense. However, we note that Defendant received safety-

valve relief due to his lack of a criminal history record, allowing him to receive a

much lower sentence than the otherwise-applicable statutory minimum. His lack

of a criminal record also factored into the calculation of the applicable sentencing

range. Moreover, the district court noted that Defendant did not have a criminal

history but indicated that this fact was outweighed by other factors, including the

amount of drugs he was involved with and the fact that he only stopped dealing

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drugs because he was arrested. Nothing in the record suggests that the court’s

reasoning constituted an abuse of discretion, nor does the record suggest any

other basis on which Defendant could rebut the presumption of reasonableness

attached to his within-Guidelines sentence. See United States v. McComb, 519

F.3d 1049, 1053 (10th Cir. 2007).

      Defendant’s pro se notice of appeal also indicates that Defendant believes

he received ineffective assistance of counsel based on trial counsel’s

representations regarding the sentence Defendant could expect to receive if he

pled guilty, a conflict between Defendant and trial counsel that affected the

attorney–client relationship, and trial counsel’s failure to argue for a variance or

object to the sentence imposed by the district court. Appellate counsel correctly

notes that ineffective assistance of counsel claims should almost always be

brought in collateral proceedings rather than on direct appeal. See United States

v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995). “Such claims brought on

direct appeal are presumptively dismissible, and virtually all will be dismissed.”

Id. The record is not sufficiently developed on direct appeal for consideration of

any of Defendant’s claims of ineffective assistance.




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      After thoroughly reviewing the record, we see no meritorious appellate

issues. We therefore GRANT counsel’s motion to withdraw and DISMISS the

appeal.

                                             Entered for the Court



                                             Monroe G. McKay
                                             Circuit Judge




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