F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 21, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 05-1532
(D . Colo.)
ERNESTO LOPEZ-VA SQUEZ, (D.Ct. No. 05-CR-221-LTB)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior
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. 34.1.9(G). The case is
therefore ordered submitted without oral argument.
Appellant Ernesto Lopez-Vasquez, a federal prisoner represented by
*
This order and judgment is not binding precedent except under the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.
counsel, pled guilty to one count of reentry of a deported alien previously
convicted of an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2).
The district court sentenced M r. Lopez-Vasquez to forty-six months imprisonment
followed by three years supervised release. M r. Lopez-Vasquez appeals the
district court’s sentence; his attorney has filed an Anders brief and motion to
withdraw as counsel. See Anders v. California, 386 U.S. 738, 744 (1967).
Exercising our jurisdiction under 28 U.S.C. § 1291, we grant counsel's request to
withdraw and dismiss M r. Lopez-V asquez’s appeal.
M r. Lopez-Vasquez received a one-count indictment for unlawful reentry of
a deported alien previously convicted of an aggravated felony, in violation of 8
U.S.C. § 1326(a) and (b)(2). He entered into a plea agreement in which he
admitted his guilt in exchange for the government’s agreement to recommend
both a one-level reduction for acceptance of responsibility, pursuant to United
States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) § 3E1.1(b), and a
sentence at the bottom of the applicable advisory Guidelines range. At M r.
Lopez-Vasquez’s Rule 11 plea hearing, the district court advised him of: 1) the
possible penalties he faced for the offense to which he pled guilty; 2) his rights to
a jury trial and representation by counsel; 3) the law of the presumption of
innocence; 4) the government's burden to prove his guilt beyond a reasonable
doubt; and 5) his rights to confront witnesses, to be protected from compelled
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self-incrimination, and to compel the attendance of w itnesses. The district court
also advised him that if he pled guilty, he had the right to appeal the sentencing
decision but not his conviction. M r. Lopez-Vasquez indicated he understood his
rights and that by pleading guilty he was giving up those rights.
After M r. Lopez-Vasquez pled guilty, the probation officer prepared a
presentence report in which he calculated M r. Lopez-Vasquez’s sentence,
determining: 1) his base offense level was 8, pursuant to U.S.S.G. § 2L1.2(a); 2)
the base level should be increased sixteen levels to 24, pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A)(ii), because he had been deported following conviction of an
aggravated felony; i.e., robbery with the use of a deadly weapon, which
constituted a crime of violence; 3) he should receive a three-level reduction for
acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1; and 4) the total
offense level should be 21. Based on M r. Lopez-Vasquez’s prior criminal history,
the probation officer calculated his criminal history level at III, resulting in a
Guidelines range of forty-six to fifty-seven months imprisonment. Neither the
government nor M r. Lopez-Vasquez filed an objection to the presentence report;
however, M r. Lopez-Vasquez requested a downward departure because he was
raised and has family in the United States; his prior violent crime was over
twenty-five years ago; and a disparity of sentence would result because some
courts use “fast track” sentencing, while others do not. Based on these
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arguments, the probation officer recommended a sentence below the Guidelines
range at thirty months imprisonment.
At sentencing, M r. Lopez-Vasquez’s counsel again argued for a sentence
below the Guidelines range on grounds: 1) M r. Lopez-Vasquez’s prior
aggravated felony for robbery with a deadly weapon occurred over twenty-five
years ago, in 1979; 2) the fast track sentencing program causes disparity in
sentencing; and 3) cultural assimilation issues exist, given he came to this country
when he was fourteen and is now middle-aged, has family (including a son) in the
United States, and has no family in M exico. The district court considered the
parties’ arguments, the defendant’s statement at sentencing, the principles set
forth in United States v. Booker, 1 including the use of the Guidelines as advisory,
the sentencing factors in 18 U.S.C. § 3553(a)(2), and the findings of fact in the
presentence report, to w hich neither party objected, and then sentenced M r.
Lopez-V asquez at the low end of the applicable G uidelines range to forty-six
months imprisonment. In so doing, the district court recognized the cultural
assimilation difficulties raised by M r. Lopez-Vasquez, but explained it was
imposing a sentence within the Guidelines range based, in part, on M r. Lopez-
Vasquez’s multiple illegal reentries and multiple and continuous criminal
offenses, which started in 1979, at the age of twenty-one, with robbery with the
1
543 U.S. 220 (2005).
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use of a deadly weapon, and continued with the offenses of statutory rape,
unlawful communication with a prisoner, failure to register as a drug offender,
grand theft, possession of stolen property, use and under the influence of a
controlled substance, petty theft, and most recently, in 2004, possession of heroin.
The district court found M r. Lopez-Vasquez to be a recidivist from which the
public needs protection, rejected the fast track program arguments as grounds
showing disparity of sentencing; and determined the advisory Guidelines range
met all of the statutory factors to be considered. It also explicitly rejected the
probation officer’s recommendation of a thirty-month sentence, stating it did not
satisfy its analysis of a sentence under § 3553(a).
After M r. Lopez-Vasquez filed a timely notice of appeal, his counsel filed
an Anders appeal brief, alleging no meritorious appellate issues exist and
requesting an order permitting him to withdraw as counsel. See Anders, 386 U.S.
at 744. Specifically, counsel points out M r. Lopez-Vasquez knowingly and
voluntarily entered his guilty plea, and the district court applied the appropriate
factors under 18 U.S.C. § 3553, giving a reasoned analysis for each factor and
why it did not warrant a reduction below the applicable advisory Guidelines
range. Pursuant to Anders, this court gave M r. Lopez-Vasquez an opportunity to
raise points in response to his attorney’s Anders brief. Id. M r. Lopez-Vasquez
responded, stating his counsel was ineffective because he told M r. Lopez-Vasquez
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if he pled guilty he would appeal an enhanced sentence and that because of his
counsel’s advice, he pled guilty.
W e begin with a discussion of the requirements for counsel filing an Anders
request. W hile it is counsel’s duty to act as an advocate for his client and an
officer of the court, “if counsel finds his case to be w holly frivolous, after a
conscientious examination of it, he should so advise the court and request
permission to withdraw.” Anders, 386 U.S. at 744. After an opportunity for the
appellant to respond, this court must “then conduct a full examination of the
record to determine whether defendant's claims are wholly frivolous. ... If the
court concludes after such an examination that the appeal is frivolous, it may
grant counsel's motion to withdraw and may dismiss the appeal.” United States v.
Calderon, 428 F.3d 928, 930 (10th Cir. 2005).
W e first address M r. Lopez-Vasquez's conviction. His counsel advises, and
the record reflects, that the district court complied with all the requirements of
Federal Rule of Criminal Procedure 11, and M r. Lopez-Vasquez was fully advised
of his rights during the plea hearing, understood them and the impact of pleading
guilty, and entered his guilty plea knowingly and voluntarily. On appeal, M r.
Lopez-Vasquez does not claim his guilty plea was otherwise unknowing and
involuntary or that the district court did not comply with Rule 11 requirements,
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but he does appear to claim that, but for the alleged ineffective assistance of
counsel, he w ould not have entered his guilty plea. However, at this juncture, w e
decline to consider his argument. This is because “[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.’” Calderon, 428 F.3d at 931 (quoting United States v.
Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995)).
W e next review M r. Lopez-Vasquez’s sentence, noting neither he nor his
counsel has raised any argument on appeal contending the sentence is in error,
and at sentencing, neither the government nor M r. Lopez-Vasquez filed an
objection to the presentence report. However, at sentencing, M r. Lopez-Vasquez
did request a downward departure based on cultural assimilation grounds, an
alleged disparity of sentencing based on certain fast track programs, and the fact
his aggravated felony is over twenty-five years old. W e review for
reasonableness the ultimate sentence imposed. Booker, 543 U.S. at 261-62. “W e
require reasonableness in two respects – the length of the sentence as well as the
method by which the sentence was calculated.” United States v. Lopez-Flores,
444 F.3d 1218, 1220 (10th Cir. 2006) (quotation marks and citation omitted),
petition for cert. filed (U.S. Jul. 7, 2006) (No. 06-5217). If the district court
“properly considers the relevant Guidelines range and sentences the defendant
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within that range, the sentence is presumptively reasonable,” but “[t]he defendant
may rebut this presumption by demonstrating that the sentence is unreasonable in
light of the other sentencing factors laid out in § 3553(a).” United States v.
Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006).
After a careful review of the record concerning M r. Lopez-Vasquez’s
sentence, we conclude the district court’s sentence is “reasoned and reasonable.”
United States v. Tsosie, 376 F.3d 1210, 1218 (10th Cir. 2004), cert. denied, 543
U.S. 1155 (2005). Nothing in the record on appeal indicates the district court
incorrectly calculated M r. Lopez-Vasquez’s sentence. It is also clear the district
court applied the appropriate factors under 18 U.S.C. § 3553(a) in determining the
length of M r. Lopez-Vasquez’s sentence, giving a reasoned analysis and rulings
for rejecting his proffered reasons for a sentence reduction below the advisory
Guidelines range.
Accordingly, we identify no meritorious appellate issues for our review and
therefore GR A N T counsel’s request to withdraw and DISM ISS M r. Lopez-
Vasquez’s appeal.
Entered by the C ourt:
W ADE BRO RBY
United States Circuit Judge
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