                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             JUN 1 2004
                                    TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,                     No. 03-4247
           v.                                                 (D. Utah)
 JUAN BARAJAS-RAMIREZ,                             (D.C. No. 03-CR-455-PGC)
 aka Juan Salvador Gaviota,
 aka Jose Gomez Lopez,
 aka Jesus Garcia,
             Defendant - Appellant.


                              ORDER AND JUDGMENT          *




Before TACHA, Chief Judge, ANDERSON and BALDOCK , Circuit Judges.



       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       This order and judgment is not binding precedent, except under the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. 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.
      Juan Barajas-Ramirez pled guilty to illegal reentry into the United States

following deportation, in violation of 8 U.S.C. § 1326. He was sentenced to

twenty-four months’ imprisonment, followed by three years of supervised release.

He appeals his sentence, arguing that his base offense level should not have been

increased twelve levels based on a prior felony drug conviction that took place

sixteen years earlier, and that he received ineffective assistance of counsel.

      Mr. Barajas-Ramirez’s appointed counsel has filed a brief pursuant to

Anders v. California , 386 U.S. 738 (1967), advising this court that, “after a

conscientious examination” of his client’s case, he has found this appeal to be

“wholly frivolous.”   Id. at 744.   After carefully reviewing the record, we agree

with Mr. Barajas-Ramirez’s counsel that this appeal presents no non-frivolous

issues. We therefore affirm Mr. Barajas-Ramirez’s sentence.

      The undisputed facts as set forth in the U.S. Probation Office’s presentence

report (“PSR”) indicate that Mr. Barajas-Ramirez was arrested on May 16, 2003,

as a result of various traffic offenses. A subsequent background check based on

Mr. Barajas-Ramirez’s fingerprints revealed that he had been deported on

January 23, 1997, following a conviction for misappropriation of music, and that

he had twice previously, in 1985 and 1987, been convicted in California state

court of selling marijuana, a felony, for which he received sentences of less than

thirteen months.


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      Accordingly, the PSR set Mr. Barajas-Ramirez’s base offense level at 8,

pursuant to United States Sentencing Commission,     Guidelines Manual (“USSG”),

§2L1.2(a) (Nov. 2002) (unlawfully entering the United States). The PSR

increased the base offense level by 12 levels, pursuant to USSG §2L1.2(b)(1)(B)

(prior deportation following a conviction for a felony drug trafficking offense for

which the sentence imposed was thirteen months or less). The PSR then

subtracted 3 levels for acceptance of responsibility, pursuant to USSG §3E1.1,

yielding a total offense level of 17.

      The PSR indicated Mr. Barajas-Ramirez had only one prior sentence in the

past ten years, giving him one criminal history point pursuant to USSG §4A1.1(e)

and yielding a criminal history category of I pursuant to USSG §5A. The

resulting guideline range was 24-30 months. Mr. Barajas-Ramirez did not object

to the PSR’s recommendations, nor did he request a downward departure, though

he did state that he had not “even committed a misdemeanor” for the past sixteen

years, following the birth of his son, and requested “an exception to deportation

so that I could take care of some things that my son needs.” Tr. of Sentencing

Hr’g at 6, R. Vol. III. The district court adopted the PSR and imposed a sentence

at the low end of the range.

      “We review a district court’s interpretation of the Sentencing Guidelines de

novo, and its factual findings for clear error, giving due deference to the district


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court’s application of the guidelines to the facts.”     United States v. Brown , 314

F.3d 1216, 1222 (10th Cir. 2003). Here, we discern no basis for challenging the

district court’s calculation of Mr. Barajas-Ramirez’s offense level or criminal

history category under the Sentencing Guidelines. As the Second Circuit

recognized in a similar context, “[t]he Sentencing Guidelines provide no time

limit on the prior federal and state convictions that may be used to trigger a

sentence enhancement.”      United States v. Stultz , 356 F.3d 261, 268 (2d Cir.

2004). We have held, moreover, that a district court does not err by considering

all prior convictions, and not only the conviction immediately preceding a

defendant’s deportation, when imposing a sentence under 8 U.S.C. § 1326(b).

United States v. Soto-Ornelas , 312 F.3d 1167, 1171 (10th Cir. 2002).

       We further note that “[i]neffective assistance of counsel claims should be

brought in collateral proceedings, not on direct appeal.”      United States v.

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

       The district court’s sentence is therefore AFFIRMED.

                                                    ENTERED FOR THE COURT


                                                    Stephen H. Anderson
                                                    Circuit Judge




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