                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                  August 16, 2011
                                TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                      No. 10-2242
                                               (D.C. No. 2:10-CR-01370-WJ-1)
 v.                                                   (D. New Mexico)
 RAYMUNDO SALGADO-VEGA,

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before ANDERSON, BALDOCK, and BRORBY, Circuit Judges.



      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); 10 th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Defendant and appellant Raymundo Salgado-Vega was sentenced to 48

months’ imprisonment for illegal reentry of an alien after being previously

deported following a conviction for an aggravated felony, in violation of 8 U.S.C.

      *
        This order and judgment is not binding precedent except under the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.
§ 1326(a) and (b). Proceeding pro se, Mr. Salgado-Vega challenges his sentence.

His appointed counsel, James P. Baiamonte, has filed a brief pursuant to Anders

v. California, 386 U.S. 738 (1967), moving to withdraw as counsel on the ground

that there is no nonfrivolous basis for an appeal. For the reasons set forth below,

we agree with Mr. Baiamonte that the record in this case provides no nonfrivolous

basis for an appeal, and we therefore grant his motion to withdraw and dismiss

this matter.



                                  BACKGROUND

      On February 15, 2010, United States Border Patrol agents determined by

means of remote video surveillance that two individuals were walking north from

the United States/Mexico border. Border patrol agents investigated and found the

two individuals trying to hide in some brush. One of these men was Mr. Salgado-

Vega. Mr. Salgado-Vega admitted to being a citizen of Mexico and to being

illegally in the United States.

      Further investigation revealed that Mr. Salgado-Vega had been previously

deported from the United States on December 11, 2009. Patrol officers also

learned that the December 2009 deportation followed a conviction for forgery, a

felony punishable by five years imprisonment, on December 7, 1995, in the

Rockdale County Superior Court in Rockdale, Georgia. For that offense, he was

sentenced to a two-year suspended sentence of confinement. At the time of his

                                         -2-
arrest on the instant violation, Mr. Salgado-Vega was on supervised release for

the 2009 deportation. Including the 2009 deportation, Mr. Salgado-Vega had

been deported four times prior to the instant reentry.

      Trial on the current offense was scheduled for August 9, 2010. On

August 3, 2001, Mr. Salgado-Vega sent a letter to his court-appointed counsel,

Mr. Baiamonte, stating,

      I must make it clear . . . that I have never denied responsibility for
      the charge of Reentry of a removed Alien, under 8 U.S.C. § 1326(a),
      only. . . . I do hereby reiterate my desire to accept responsibility for
      said charge. In regards to the enhancing allegation pursuant to
      § 1326(b), I wish to emphasize the fact I’m reserving any right I
      might have to challenged the Constitutionality of said allegation for
      Federal Sentencing Enhancement Purposes.

R. Vol. 1 at 23. Mr. Salgado-Vega emphasized that his acceptance of

responsibility was limited to the simple reentry provision, 8 U.S.C. § 1326(a), and

did not include acceptance of the enhanced sentence under § 1326(b) for

reentering after a prior deportation following the conviction for an aggravated

felony:

      Therefore, Sir, please notify the District Attorney’s Office my desire
      to enter an Agreement accepting responsibility per § 1326(a), only. I
      keep maintaining the Georgia Statute under which I was Convicted is
      not analogous to its Federal counterpart. Thus, it cannot be counted
      as an “Aggravated felony” for its use as an Enhancement of Sentence
      in the manner intended by the Government.

Id. The government, however, refused to accept a guilty plea that did not include

pleas of guilt to both § 1326(a) and (b).


                                            -3-
      On August 6, 2010, the district court held a pretrial conference, and advised

Mr. Salgado-Vega that any guilty plea made the morning of trial (the following

Monday, August 9), after the witnesses and jurors were assembled, could not be

used for an acceptance of responsibility to reduce his sentence. Mr. Salgado-

Vega apparently maintained his refusal to plead guilty.

      On the day of trial, August 9, 2010, before the jurors entered the court

room, Mr. Baiamonte informed the court about Mr. Salgado-Vega’s August 3,

2010, letter expressing an interest in only pleading guilty to § 1326(a). The

following interchange occurred between the court and counsel:

             THE COURT: I mean, 1326(a) charges are generally for those
      illegal reentry offenses where there’s no prior deportations based on
      prior state or federal felony convictions. Am I correct in that?

           MR. CAIRNS [government counsel]: That’s correct, Your
      Honor. Typically, someone who’s charged pursuant to 1326(a) only
      would have no . . . felony convictions.
                                        ....

               THE COURT: But Mr. Salgado-Vega, you’ve offered to plead
      to . . . 1326(a), but the government’s not willing to accept your offer.
      So your only option if you want to enter into a plea agreement is to
      plead straight up to the indictment. Otherwise, I’m going to
      commence the jury trial.
               Do you need a minute to advise him of that, Mr. Baiamonte?

           MR. BAIAMONTE: We’ve gone over this at length, Your
      Honor.
                              ....

            THE COURT: Okay, Mr. Salgado-Vega, let me first make
      sure you understand a couple of things. On the record here, . . . you
      have tendered a letter that says you were willing to plead just to

                                         -4-
      1326(a), which would not include any aggravated felony aspects, and
      the government is not willing to accept that plea, and so I want to
      make sure you understand I can’t force the government to allow you
      to just plead to 1326(a). Do you understand that?

             THE DEFENDANT: (Through the Interpreter) Yes.

             THE COURT: Okay. Now, you have the right – you
      understand outside the doors we’ve assembled a group of prospective
      jurors who are going to try this case, and the government’s ready to
      proceed this morning? Now, if you wish to enter a plea straight up to
      the indictment, just plead to the indictment, which would include
      1326(a) and 1326(b), you have the right to do that. Do you
      understand, sir?

             THE DEFENDANT: I wish to do that.

             THE COURT: Okay. Before I accept your plea, I want to
      make sure that you understand that, by entering a plea the morning of
      trial where jurors have driven from different parts of the state to be
      here, where the United States government has flown in witnesses,
      some as far as Virginia, that the government is going to object to you
      getting any reduction for acceptance of responsibility. Do you
      understand that?

             THE DEFENDANT: I do.

            THE COURT: And that it will be up to me at the time of
      sentencing to decide whether or not you get any acceptance of
      responsibility? Do you understand that?

             THE DEFENDANT: Yes.

Tr. of Jury Trial/Plea at 4-8, R. Vol. 3 at 7-11. After further discussion between

the court and counsel about whether Mr. Salgado-Vega should just go ahead with

trial, since it was unlikely he would receive a reduction in his sentence for

acceptance of responsibility at this late date, Mr. Salgado-Vega conferred with his


                                         -5-
counsel privately once again, following which Mr. Salgado-Vega indicated he

wished to plead guilty to the entire indictment.

      Thereafter, Mr. Salgado-Vega was placed under oath and pled guilty in the

usual way, following a lengthy colloquy between the court and him concerning

his understanding of the consequences of his guilty plea.

      In preparation for sentencing under the advisory United States Guidelines

Commission, Guidelines Manual (“USSG”) (2009), the United States Probation

Office prepared a presentence report (“PSR”). The Probation Office calculated a

total adjusted offense level of 16, which included 8 points because Mr. Salgado-

Vega had been previously deported following his conviction for forgery in

Georgia, which the PSR determined qualified as an aggravated felony under

USSG §2L1.2(b)(1)(C). The PSR’s analysis is as follows: 8 U.S.C.

§ 1101(a)(43)(P) defines an aggravated felony as “an offense which either is

falsely making, forging, counterfeiting, . . . a passport or instrument.” 8 U.S.C.

1101(a)(48)(B) provides that “any reference to a term of imprisonment or

sentence with respect to an offense is deemed to include the period of

incarceration or confinement ordered by a court of law regardless of any

suspension of the imposition or execution of that imprisonment or sentence in

whole or in part.” Thus, the fact that Mr. Salgado-Vega’s sentence was a two-

year suspended sentence of confinement did not make his forgery ineligible for

aggravated felony status. The PSR therefore calculated a 16-level offense level.

                                         -6-
       Mr. Salgado-Vega’s extensive criminal history placed him in criminal

history category V. This yielded an advisory guidelines sentencing range of 41 to

51 months. Mr. Salgado-Vega filed no objections to the PSR.

      Sentencing took place on October 25, 2010. 1 While the PSR and the

government recommended against granting Mr. Salgado-Vega a three-level

reduction in his total offense level for acceptance of responsibility, Mr. Salgado-

Vega asked for a one-level reduction. He argued that, while he did not plead

guilty until the trial was about to commence, he nonetheless spared everyone the

actual trial. Mr. Salgado-Vega conceded the rest of the PSR was accurate, with

the exception of that allegation that he had seventeen aliases. Mr. Salgado-Vega

argued he only had one alias.

      The district court rejected any argument for an acceptance of responsibility

reduction, and concluded that the total offense level was 16 and the criminal

history category was V. The court therefore imposed a sentence of 48 months, in

the middle of the advisory guidelines range. It stated it had considered the

sentencing factors of 18 U.S.C. § 3553(a), and it noted Mr. Salgado-Vega’s

extensive criminal history, specifically enumerating many of his prior offenses.




      1
       Since Mr. Salgado-Vega had been on supervised release when he
committed the instant offense, his actual sentencing was combined with a
revocation of supervised release proceeding. He was sentenced to a concurrent
12-month sentence on the claim relating to revocation of supervised release.

                                         -7-
      Mr. Salgado-Vega endeavors to appeal that sentence. His notice of appeal

contains the issues he wishes to bring up. As indicated, his appointed counsel has

moved to withdraw as counsel pursuant to Anders. Mr. Salgado-Vega has

submitted his notice of appeal. The government has declined to file a brief.

Accordingly, we base our decision on counsel’s brief, Mr. Salgado-Vega’s notice

of appeal, and our own careful review of the record.



                                  DISCUSSION

      In Anders, the Supreme Court held that if a defendant’s counsel “finds [the

defendant’s] case to be wholly frivolous, after a conscientious examination of it,

he should so advise the court and request permission to withdraw.” Anders, 386

U.S. at 744. Counsel must submit to both the court and his client a “brief

referring to anything in the record that might arguably support the appeal.” Id.

The defendant may then “raise any points that he chooses.” Id.

      The reviewing court must examine all the proceedings to determine whether

the appeal is frivolous. Id. If the court so finds, it may grant defense counsel’s

request to withdraw and dismiss the appeal. Id. “On the other hand, if it finds

any of the legal points arguable on their merits (and therefore not frivolous) [the

reviewing court] must, prior to decision, afford the indigent [defendant] the

assistance of counsel to argue the appeal.” Id.




                                         -8-
        Mr. Salgado-Vega argues in his pleading called a “Notice of Appeal” that

his attorney was ineffective and that the district court erred in sentencing him

without giving him the opportunity to make objections to the PSR, in particular to

object to the denial of a three-level acceptance of responsibility reduction. His

counsel also suggests that Mr. Salgado-Vega wishes to challenge the use of the

Georgia conviction for forgery as an “aggravated felony” warranting an 8-level

increase in his base offense level.

        With respect to the ineffective assistance of counsel claims, we have stated

that:

        [i]neffective 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.

United States v. Galloway, 56 F 3d 1239, 1240 (10 th Cir. 1995) (en banc).

“[E]ven if the record appears to need no further development, the claim should

still be presented first to the district court in collateral proceedings . . . so the

reviewing court can have the benefit of the district court’s views.” Id.

Accordingly, “there is only a slight chance that we will forego the development of

a factual record or at least an opinion by the district court on the subject in the

first instance.” Id. at 1241. After review of the Anders brief, Mr. Salgado-

Vega’s submissions, and the record in this case, we see no reason to depart from




                                           -9-
this general rule. See United States v. Delacruz-Soto, 414 F.3d 1158, 1168 (10 th

Cir. 2005).

      Regarding his claim that he was somehow not allowed to make objections

to the PSR, the record does not support that. Mr. Salgado-Vega made no written

objections, but at his sentencing, he raised his complaint that he did not have

seventeen aliases, as the PSR stated, but only one. And, his counsel argued for a

downward departure for acceptance of responsibility, although recognizing that it

was unlikely that he could get more than a one-point departure. After discussion

and argument, the court decided Mr. Salgado-Vega was entitled to no reduction

for acceptance of responsibility.

      Finally, with respect to the use of the Georgia forgery conviction to

increase Mr. Salgado-Vega’s base offense level, Mr. Salgado-Vega only argues

(and not in his notice of appeal, but in other pleadings below) that the Georgia

conviction was treated differently when he was on trial in California, presumably

in federal court, for a similar illegal reentry charge. But, we have no details

about that California proceeding; and, in any event, its analysis would not control

ours. As to his counsel’s analysis, he concurs with the PSR rationale for finding

that the Georgia conviction qualifies as an aggravated felony under the relevant

statute. We find no fault with that analysis. 2

      2
      Furthermore, Mr. Salgado-Vega pled guilty to a violation of 8 U.S.C.
§ 1326(b), which includes the determination that he had committed an aggravated
                                                                   (continued...)

                                         -10-
      We have carefully reviewed the record, and it shows no error in the court’s

determination of the sentence for Mr. Salgado-Vega. We perceive no non-

frivolous grounds for challenging the sentence imposed in this case.



                                  CONCLUSION

      For the foregoing reasons, we GRANT defense counsel’s motion to

withdraw and DISMISS this matter.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




      2
       (...continued)
felony. So, barring a challenge to the validity of his guilty plea, which he does
not make, he has waived the right to challenge that determination.

                                        -11-
