FILED
United States Court of Appeals
Tenth Circuit
March 17, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-4141
(D.C. No. 07-CR-00572-TS-PMW-14)
ARNULFO GARCIA-PENA, (D. Utah)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.
Defendant pled guilty to conspiracy to distribute heroin. The district court
sentenced him to an eighty-seven-month term of imprisonment, at the bottom of
the advisory Guideline range. Defendant filed a pro se notice of appeal
expressing his dissatisfaction with the length of his sentence and with his trial
counsel’s actions in persuading him to plead guilty and in representing him at
*
This order and judgment is not binding precedent, except under the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.
After examining the briefs and the 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 ordered submitted without oral argument.
sentencing. His appellate counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), explaining why counsel believes there to be no
reasonable grounds for appeal. Neither Defendant nor the government has filed a
response to counsel’s Anders brief.
Defense counsel first notes the existence of an appellate waiver. However,
because the government did not itself invoke the appellate waiver, Defendant’s
appeal is not foreclosed by this. See United States v. Calderon, 428 F.3d 928,
931 (10th Cir. 2005). We therefore must consider under Anders whether there are
any non-frivolous issues upon which Defendant has a basis for appeal. See id. at
930.
The first potential ground for appeal is the voluntariness of Defendant’s
plea of guilty. However, as appellate counsel points out, nothing in the record on
appeal supports a conclusion that the plea was not entered into knowingly and
voluntarily. The record shows that an interpreter read the plea agreement to
Defendant and that an interpreter was present during the change of plea hearing.
The record shows that the district court performed a plea colloquy in which
Defendant indicated that he knew and understood what was happening, that he
was fully satisfied with his counsel, and that he was entering his plea voluntarily.
Moreover, nothing in the record indicates that trial counsel materially
misinformed Defendant such that his plea should be considered involuntary.
Second, Defendant could potentially appeal the procedural and substantive
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reasonableness of the sentence imposed by the district court. As for procedural
reasonableness, the only ground that was preserved for appeal relates to the
court’s rejection of Defendant’s request for a “minor participant” reduction.
After considering evidence that Defendant had negotiated for a role distributing
larger quantities of drugs than street-level dealers, the court found that Defendant
was not less culpable than most other participants in the conspiracy. Nothing in
the record suggests that this finding was clearly erroneous. Because trial counsel
made no other objections to the court’s calculation of the applicable Guidelines
range, Defendant would need to demonstrate plain error in order to call any other
aspects of the procedural reasonableness of his sentence into question. However,
nothing in the record suggests any error in the court’s calculation, much less error
that is plain.
As for substantive reasonableness, Defendant indicates in his notice of
appeal that he believes his sentence to be substantively unreasonable because this
was his first criminal offense. However, we note that Defendant received safety-
valve relief due to his lack of a criminal history record, allowing him to receive a
much lower sentence than the otherwise-applicable statutory minimum. His lack
of a criminal record also factored into the calculation of the applicable sentencing
range. Moreover, the district court noted that Defendant did not have a criminal
history but indicated that this fact was outweighed by other factors, including the
amount of drugs he was involved with and the fact that he only stopped dealing
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drugs because he was arrested. Nothing in the record suggests that the court’s
reasoning constituted an abuse of discretion, nor does the record suggest any
other basis on which Defendant could rebut the presumption of reasonableness
attached to his within-Guidelines sentence. See United States v. McComb, 519
F.3d 1049, 1053 (10th Cir. 2007).
Defendant’s pro se notice of appeal also indicates that Defendant believes
he received ineffective assistance of counsel based on trial counsel’s
representations regarding the sentence Defendant could expect to receive if he
pled guilty, a conflict between Defendant and trial counsel that affected the
attorney–client relationship, and trial counsel’s failure to argue for a variance or
object to the sentence imposed by the district court. Appellate counsel correctly
notes that ineffective assistance of counsel claims should almost always be
brought in collateral proceedings rather than on direct appeal. See United States
v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995). “Such claims brought on
direct appeal are presumptively dismissible, and virtually all will be dismissed.”
Id. The record is not sufficiently developed on direct appeal for consideration of
any of Defendant’s claims of ineffective assistance.
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After thoroughly reviewing the record, we see no meritorious appellate
issues. We therefore GRANT counsel’s motion to withdraw and DISMISS the
appeal.
Entered for the Court
Monroe G. McKay
Circuit Judge
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