                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                         April 14, 2006

                                                                      Elisabeth A. Shumaker
                                                                         Clerk of Court
                    UNITED STATES COURT OF APPEALS

                                     TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 05-2221
          v.                                       District of New Mexico
 JOHN BODENHEIMER,                                (D.C. No. 03-596 MCA)

               Defendant-Appellant.


                            ORDER AND JUDGMENT          *




Before HARTZ , SEYMOUR , and McCONNELL , Circuit Judges.


      Defendant-Appellant John Bodenheimer pleaded guilty to one count of

possession of matter containing visual depictions of children engaged in sexually


      *
         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). This case is
therefore 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    This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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. 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.
explicit conduct and further agreed to the criminal forfeiture of all related

property. On August 19, 2003, the district court sentenced Mr. Bodenheimer to

33 months in prison and 3 years of supervised release, and issued a special

penalty assessment of $100.00. After his original trial counsel failed to file and

perfect a direct appeal, Mr. Bodenheimer filed a motion under 28 U.S.C. § 2255.

The district court granted habeas relief, vacating and immediately reinstating Mr.

Bodenheimer’s conviction and sentence so that he could take a direct appeal of

his criminal conviction to this Court. Mr. Bodenheimer timely appealed his

conviction and sentence, and his counsel, Todd Hotchkiss, filed an    Anders brief

and moved to withdraw as counsel.     See Anders v. California , 386 U.S. 738

(1967). We find that neither Mr. Bodenheimer nor his counsel raises any non-

frivolous issues on appeal, and we grant counsel’s motion to withdraw and

dismiss the appeal.

                       Factual and Procedural Background

      Mr. Bodenheimer was charged with one count of possession of matter

containing visual depictions of children engaged in sexually explicit conduct and

one count of criminal forfeiture of all related property. He pleaded guilty to both

counts. In his plea agreement, Mr. Bodenheimer stipulated that he was, in fact,

guilty of the charged offenses and acknowledged that if he “chose to go to trial




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instead of entering [his] plea, the United States could prove facts sufficient to

establish [his] guilt to the charges in the information beyond a reasonable doubt.”

      The district judge conducted a plea hearing on April 10, 2003. During the

hearing, the judge questioned Mr. Bodenheimer about his competence and

capacity to enter a plea. When she asked Mr. Bodenheimer whether he was

thinking clearly that morning, he turned to his counsel. The district judge said,

“Mr. Bodenheimer, don’t be looking to your lawyer to give you answers. If you

don’t understand the question, let me know.”

      Prior to sentencing, Mr. Bodenheimer’s counsel, Thomas      Jameson, made a

motion for downward departure. Relying on a psychological report that detailed

Mr. Bodenheimer’s childhood history as a victim of abuse and concluded that Mr.

Bodenheimer had diminished mental capacity, counsel argued that Mr.

Bodenheimer’s diminished mental capacity and the non-violent nature of the

offense militate in favor of a downward departure in sentencing. The court

recognized Mr. Bodenheimer’s personal history and accepted the fact of his

diminished mental capacity, but declined to depart downward because the nexus

between the diminished capacity and the crime committed was insufficient to

justify a downward departure. At the end of the hearing, the district court

sentenced Mr. Bodenheimer to 33 months in prison and 3 years of supervised

release and issued a special penalty assessment of $100.00.


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                                      Discussion

      Mr. Bodenheimer raises eight claims on appeal, which we construe

liberally. Five of those claims amount to claims of ineffective assistance of

counsel. Such claims must be brought in a proceeding for habeas review rather

than on a direct appeal, and we therefore do not consider them.     United States v.

Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc) (footnote omitted)

(explaining that one reason ineffective assistance claims may not be brought on

direct appeal is the need for development of a factual record). Mr. Bodenheimer

also challenges the validity of his plea agreement and the reasonableness of his

sentence to three years of supervised release. Finally, he makes a Sixth

Amendment claim that he was denied the right to consult with his attorney. We

consider each of these claims in turn.

A.    Involuntary Plea Agreement

      First, Mr. Bodenheimer contends that he did not have the necessary mens

rea to be convicted of the charged offenses. This, however, directly contradicts

his plea agreement. In his plea agreement, Mr. Bodenheimer pleaded guilty to the

two counts charged and stipulated that he was guilty of the charged offenses. He

stated that if he “chose to go to trial instead of entering [his] plea, the United

States could prove facts sufficient to establish [his] guilt to the charges in the




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information beyond a reasonable doubt.” Thus, this challenge to his conviction

fails.

         Liberally construing Mr. Bodenheimer’s contention, it is possible that he is

challenging the voluntariness of his plea agreement. The Constitution requires

that a defendant entering a plea of guilty do so knowingly and voluntarily.   Fields

v. Gibson , 277 F.3d 1203, 1212-13 (10th Cir. 2002). Mr. Bodenheimer, however,

has not identified any evidence in the record that might suggest that his plea was

made unknowingly or involuntarily. That version of the claim, therefore, also

fails.

B.       Reasonableness of Mr. Bodenheimer’s Sentence to Supervised Release

         Second, Mr. Bodenheimer contends that, because the district court judge

found that his offenses were not violent acts for the purposes of sentencing, his

sentence to three years of supervised release to be served after his thirty-three

months in prison is unreasonable. After     Booker , we review imposed sentences for

reasonableness, and, when “the district court properly considers the relevant

Guidelines range and sentences the defendant within that range,” we presume that

the sentence is reasonable.   United States v. Kristl , 437 F.3d 1050, 1055 (10th

Cir. 2006). In addition, “[d]istrict courts enjoy broad discretion in fashioning

conditions of supervised release.”    United States v. Bartsma , 198 F.3d 1191, 1200

(10th Cir. 1999).


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       In this case, the district court acted within its discretion and the imposition

of a supervised release was reasonable. Under the advisory supervised release

sections of the Federal Sentencing Guidelines, it is recommended that a district

court impose a term of supervised release “when a sentence of imprisonment of

more than one year is imposed.” U.S.       S ENTENCING G UIDELINES § 5D1.1(a). The

Guidelines recommend a two- to three-year term of supervised release for all class

C or D felonies and advise that the maximum recommended term should be

imposed when the conviction is for a sex offense.       Id. at § 5D1.2(a)(2) &

(b)(policy statement). Indeed, the guidelines allow for the imposition of a

lifetime of supervised release when the conviction is for a sex offense.     Id. at §

5D1.2(b). The sentence of supervised release in this case corresponds to the

sentence recommended by the Guidelines, and the defendant has suggested no

persuasive reason why the circumstances of his case demand different treatment.

We, therefore, find the sentence to be reasonable.

C.     Denial of Right to Counsel

       Finally, Mr. Bodenheimer contends that he was denied his Sixth

Amendment right to effective counsel when the district court judge “jumped on”

him when he turned to his attorney to ask him a question during the plea hearing.

In the context of a criminal defendant testifying during trial, there is precedent

that a judicial order that the defendant not consult with his attorney during a


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recess can amount to a denial of effective assistance of counsel.        See Geders v.

United States , 425 U.S. 80, 91 (1976) (holding that a trial court order prohibiting

criminal defendant from consulting with counsel during a 17-hour, overnight

recess after defendant’s direct examination and before the cross-examination was

reversible error, even though the prohibition was made because of concern about

inappropriate “coaching” of the defendant). This precedent, however, is limited:

a court order prohibiting communication between the defendant and counsel

during a brief recess during the defendant’s testimony does not violate the

defendant’s right to effective assistance of counsel.     See Perry v. Leeke , 488 U.S.

272, 280-81 (1989). As the Supreme Court explained, a criminal defendant, as a

witness, “has no constitutional right to consult with his lawyer while he is

testifying. He has an absolute right to such consultation before he begins to

testify, but neither he nor his lawyer has a right to have the testimony interrupted

in order to give him the benefit of counsel’s advice.”     Id. at 281.

       In this case, by analogy to the Supreme Court precedent cited above, we

find that Mr. Bodenheimer was not denied his right to counsel. The alleged

denial of counsel occurred during Mr. Bodenheimer’s plea hearing. The district

court judge was questioning Mr. Bodenheimer about his competence and capacity

to enter a plea. When she asked Mr. Bodenheimer whether he was thinking

clearly that morning, he turned to his counsel. The district court judge said, “Mr.


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Bodenheimer, don’t be looking to your lawyer to give you answers. If you don’t

understand the question, let me know.” Although Mr. Bodenheimer was not on

the witness stand, he was being questioned by the judge so that she could

determine his competence to enter a plea. At that moment, Mr. Bodenheimer did

not have a Sixth Amendment right to consult with his attorney, and it was not

error for the district court judge to instruct him to answer her questions without

consulting his attorney.

      Accordingly, the judgment of the United States District Court for the

District of New Mexico is   AFFIRMED .

                                               Entered for the Court,

                                               Michael W. McConnell
                                               Circuit Judge




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