                                                                          F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                         January 30, 2007
                                TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                         Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff–Appellee,                       No. 06-1004
          v.                                               (D . Colo.)
 SIM ON JOSE LA GUNAS,                          (D.C. No. 05-CR-00067-W YD)

               Defendant–Appellant.



                           OR D ER AND JUDGM ENT *


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      Simon Lagunas pleaded guilty to knowing and intentional possession with

intent to distribute a substance or mixture containing fifty or more grams of

cocaine base. The court sentenced him to the statutorily required minimum of

120 m onths incarceration. M r. Lagunas timely appealed. His counsel, M artha H .

Eskesen, filed an Anders brief and moved to withdraw as counsel, stating that,

despite a diligent search, she could find no basis for appeal. See Anders v.

California, 386 U.S. 738 (1967). The government declined to submit a brief. M r.

Lagunas filed a pro se supplemental brief. Because w e find that neither M r.


      *
        This order and judgment is not binding precedent, except under the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 10 th
Cir. R. 32.1.
Lagunas nor his counsel raises any non-frivolous issues on appeal, we grant

counsel’s motion to withdraw and dismiss the appeal.

                                 I. BACKGROUND

      On January 20, 2005, Pueblo, Colorado police executed a search warrant at

M r. Lagunas’s residence and recovered 104.5 grams of crack cocaine and an

unloaded semi-automatic pistol. M r. Lagunas admitted to police that both the

crack cocaine and the weapon belonged to him, and that he possessed the former

for the purpose of selling it to others.

      M r. Lagunas entered into a plea agreement whereby he agreed to plead

guilty to a violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), which he

acknowledged carries a statutorily mandated minimum sentence of ten years to

life imprisonment. For its part, the government agreed to recommend a sentence

of not more than 120 months imprisonment. On September 21, 2005, the district

court accepted M r. Lagunas’s plea after conducting a colloquy that established

that the Defendant was fully competent to enter a plea, that he understood the

nature of the charges against him and the consequences of his plea, and that his

plea was knowing, voluntary, and supported by a factual basis. The court also

informed M r. Lagunas of the statutory minimum sentence and Guidelines range

for w hich his conduct qualified.




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      Sentencing occurred on December 21, 2005. The court noted that it was

bound to sentence M r. Lagunas w ithin the statutorily mandated range and could

not depart below that range unless the government filed a motion reflecting

substantial assistance in the investigation of another person who has committed an

offense. See 18 U.S.C. § 3553(e). W hen the court asked M r. Lagunas w hy he did

not provide such assistance, he responded: “I just don’t work that way . . . . [I]t’s

not right for me to get in trouble and put somebody else in trouble just because

I’m in trouble. You know, do the crime, do the time.” R. Vol. III, at 8. The

court sentenced M r. Lagunas to 120 months imprisonment.

      M r. Lagunas timely appealed.

                                 II. D ISC USSIO N

      Following M r. Lagunas’s notice of appeal, his attorney filed an Anders

brief, see 386 U.S. at 741-42, in which she explains that the district court

followed the law in imposing M r. Lagunas’s sentence and, therefore, she can find

no m eritorious issue to raise on his behalf. M r. Lagunas responded with his ow n

pro se brief, in which he contends that he received ineffective assistance of

counsel, that his sentence issued in violation of United States v. Booker, 543 U.S.

220 (2005), that he did not enter his plea knowingly, and that the district court

improperly enhanced his sentence.




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                                          A.

       M r. Lagunas first asserts that his counsel was ineffective in pursuing this

appeal. H e also appears to argue that she was ineffective during the plea process.

Generally, ineffective assistance of counsel claims must be raised in a collateral

proceeding, which allows for the development of a factual record and review by a

district court in the first instance. United States v. Galloway, 56 F.3d 1239, 1240

(10th Cir. 1995) (en banc). Pursuant to this principle, we dismiss M r. Lagunas’s

ineffective assistance of counsel claims.

       W e will address, however, an argument that M r. Lagunas advances in

support of his ineffective assistance claim, interpreting it as a claim on the merits.

He contends that the district court failed to apply properly the exception to

mandatory minimum sentences contained in 18 U.S.C. § 3553(f). Under the

statute, a sentencing court must “impose a sentence pursuant to” the United States

Sentencing Guidelines “without regard to any statutory minimum sentence,” 18

U.S.C. § 3553(f), if a number of conditions are met, one of which is that the

defendant “did not . . . possess a firearm . . . in connection with the offense,” id. §

3553(f)(2). 1



       1
        M r. Lagunas notes that the Ninth Circuit recently held that the § 3553
safety valve “survives Booker to require district courts to impose sentences
pursuant to the advisory Sentencing Guidelines.” United States v. Cardenas-
Juarez, 469 F.3d 1331, 1334 (9th Cir. 2006). Because we find that even if the
statute does continue to apply, M r. Lagunas cannot demonstrate plain error, we
need not address the issue.

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      Because M r. Lagunas failed to raise this argument at sentencing, we review

for plain error. “Plain error occurs when there is (1) error, (2) that is plain, which

(3) affects substantial rights, and which (4) seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” United States v. Bowen,

437 F.3d 1009, 1021 (10th Cir. 2006) (internal quotation marks omitted). Error

exists “[i]f a legal rule was violated during the district court proceedings, and . . .

the defendant did not waive the rule.” United States v. Olano, 507 U.S. 725,

733–34 (1993). M r. Lagunas has failed to demonstrate that error occurred. As

noted, the § 3553 safety valve applies only if the defendant did not “possess a

firearm . . . in connection with the offense,” 18 U.S.C. § 3553(f)(2), and the

burden is on the defendant to prove this condition is met. Cf. United States v.

Payton, 405 F.3d 1168, 1170 (10th Cir. 2005) (noting that the burden is on the

defendant to prove he qualifies for a downward departure under U.S.S.G. § 5C1.2,

which tracks the requirements of 18 U.S.C. § 3553(f)). In his plea agreement, M r.

Lagunas stipulated that (1) during a search of his home police found 104.5 grams

of crack cocaine in one kitchen cabinet and an unloaded semi-automatic pistol in

another kitchen cabinet, and (2) that he admitted, in a post-search interview with

the police, that the weapon belonged to him. This Court has previously held that

“[t]he mere propinquity of . . . weapons and drugs suggests a connection between

the two.” Id. at 1171. B ecause M r. Lagunas failed to raise the issue at trial, we

have no way of knowing whether the district court simply found the safety valve

                                           -5-
inapplicable (due to his possession of a gun in connection with the offense)— a

reasonable assumption given the evidence in this case— or whether it failed to

consider the issue altogether. Under these circumstances, we cannot conclude

that the district court committed plain error. Cf. United States v. Crockett, 435

F.3d 1305, 1312 (10th Cir. 2006) (“W hen a defendant has not made a timely and

sufficient proffer of the substance of the evidence, we are hindered in applying

the plain error test. ‘A full record and a prior decision in the district court are

essential ingredients to our substantive review of issues— they flesh out an issue

in a way the parties' briefs may not.’”) (quoting United States v. Pielago, 135

F.3d 703, 709 (11th Cir.1998)). If M r. Lagunas wants to pursue this claim in the

context of an ineffective assistance claim in habeas proceedings, he is free to do

so.

                                           B.

      M r. Lagunas next appears to argue that Booker somehow undermines the

validity of the mandatory minimum sentence applied in this case. Nothing in

Booker supports this argument. M r. Lagunas pleaded guilty to violating 21

U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), which provides that anyone who “possess[es]

with intent . . . to distribute . . . 50 grams or more of a mixture or substance . . .

which contains cocaine base . . . shall be sentenced to a term of imprisonment

which may not be less than 10 years.” O nce he so pleaded, all the facts necessary

to support his sentence were established in conformity with constitutional

                                           -6-
requirements. See Booker, 543 U.S. at 244 (“Any fact (other than a prior

conviction) which is necessary to support a sentence exceeding the maximum

authorized by the facts established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond a reasonable doubt.”

(emphasis added)). That a judge-found fact might lead to a lower sentence

pursuant to the safety valve provision is immaterial under Booker.

                                          C.

      M r. Lagunas next attacks the validity of his plea agreement. He argues that

because he was unaware of the § 3553 safety valve and because he accepted the

plea bargain upon his attorney’s advice and “didn’t know any better,” Appellant’s

Pro Se Supp. Opening Br. at 11, he did not enter his plea intelligently. See

Bousley v. United States, 523 U.S. 614, 618 (1998) (“A plea of guilty is

constitutionally valid only to the extent it is voluntary and intelligent.” (internal

quotation marks omitted)). The record does not support this contention. M r.

Lagunas participated in a valid Rule 11 colloquy during which the court ensured

he understood the nature of the charges against him, the terms of the proposed

agreement, and the rights he would relinquish by entering the agreement. To the

extent M r. Lagunas believes his counsel erred in advising him, we again stress

that such claims are to be advanced in a collateral proceeding.




                                          -7-
                                         D.

      M r. Lagunas’s final argument is that the district court improperly increased

his sentence based on the fact that an unloaded gun was found during the search

of his house. Since M r. Lagunas was sentenced to the mandatory minimum,

based solely on the facts admitted in his plea, this argument fails.

                               III. C ON CLU SIO N

      After carefully examining the briefs and the record, we agree with M s.

Eskesen’s assessment: the district court was bound to follow the requirements of

Fed. R. Crim. P. 11 in accepting M r. Lagunas’s plea, and was bound under 21

U.S.C. §§ 841(a)(1), (b)(1)(A)(iii) to sentence M r. Lagunas to at least ten years

incarceration. The court dispatched both of these duties without error, and

therefore we find no non-frivolous arguments on appeal.

      W e grant counsel’s motion to withdraw and dismiss the appeal. W e deny

as moot M r. Lagunas’s motion to remove M s. Eskesen as counsel and to proceed

pro se. The judgment of the United States District Court for the District of

Colorado is AFFIRM ED.

                                               Entered for the Court,

                                               M ichael W . M cConnell
                                               Circuit Judge




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