*After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.

F I L E D

United States Court of Appeals

Tenth Circuit

JUL 8 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

PETER ANTHONY GUTIERREZ,

Defendant - Appellant.

No. 96-5221

(D.C. No. 95-CR-152-K)

(N.D. Okla.)

ORDER AND JUDGMENT*

Before BRORBY, EBEL and KELLY, Circuit Judges.

Defendant - Appellant, Peter Gutierrez (“Gutierrez”) challenges his

sentence imposed under the United States Sentencing Guidelines for his

conviction of felony possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(1), and possession of stolen firearms, in violation of 18 U.S.C. § 922(j). 

Gutierrez’s counsel has determined that Gutierrez’s appeal is wholly frivolous. 
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Accordingly, counsel has filed both a motion to withdraw as attorney of record

and a corresponding Anders brief outlining Gutierrez’s argument. See Anders v.

California, 386 U.S. 738 (1967).

Upon review of Gutierrez’s arguments, we find the appeal wholly frivolous. 

Therefore, we grant counsel’s request to withdraw as attorney of record, and we

affirm Gutierrez’s sentence. 

BACKGROUND

Gutierrez was named as a defendant in a four-count superseding indictment

filed in the Northern District of Oklahoma on March 8, 1996. (ROA, Vol. I, Doc

#10). Gutierrez entered a plea of guilty to Count One, in which he was charged

with possession of a firearm after former conviction of a felony in violation of 18

U.S.C. § 922(g)(1), and to Count Two, in which he was charged with possession

of stolen firearms, in violation of 18 U.S.C. § 922(j). (ROA, Vol. 1, Doc #15). 

Pursuant to the plea agreement, the government dismissed Count Three, armed

carjacking in violation of 18 U.S.C. § 2119, and Count Four, use of a firearm in

the commission of a violent felony in violation of 18 U.S.C. § 924(c). (ROA,

Vol. 1, Doc #14).

By reference to the Probation Officer’s PSI report, the district court went

through the following analysis in calculating Gutierrez’s sentence. First, the

court looks to the sentencing guideline applicable for convictions under 18
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U.S.C. §§ 922(j) and 922(g)(1), which is U.S.S.G. § 2K2.1. Pursuant § 2K2.1(c),

however, the sentencing court must determine whether the firearm at issue was

used by the defendant “in connection with the commission or attempted

commission of another offense.” U.S.S.G. § 2K2.1(c). If the court so finds, the

court must then apply U.S.S.G. § 2X1.1 (the guideline for an attempt, solicitation,

or conspiracy to commit another offense) if the resulting offense level is greater

than the one provided for in § 2K2.1. Section 2X1.1(a) provides for a base

offense level equal to the base offense level applicable to the underlying

substantive offense, “plus any adjustments from such guideline for any intended

offense conduct that can be established with reasonable certainty.” U.S.S.G.

§ 2X1.1(a). The underlying substantive offense at issue in this case is robbery

and carjacking, which are governed by the robbery guideline, U.S.S.G. § 2B3.1. 

Because § 2B3.1 provides for a total offense level of 34, whereas the resulting

offense level under § 2K2.1 is 19, (Compare ROA, Vol, II, Addendum to PSI

Report, at 4 with PSI Report, at 7), § 2K2.1 requires the application of § 2B3.1. 

In applying the Sentencing Guidelines, the sentencing court adopted the

factual findings contained in the presentence report prepared by the Probation

Office, which found that Gutierrez had used the firearms at issue during a

carjacking. (ROA, Vol. III, Sentencing Transcript, at 103-04). The sentencing

court reviewed the Probation Officer’s findings and found, “. . . by a
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preponderance of the evidence that the aggravating relevant conduct was correctly

determined by the Probation Officer.” (Id. at 102.). 

Specifically, the Probation Officer found, through the testimony of the

carjacking victim, Terrick Burdine, that Gutierrez used his gun to command

Burdine into the back seat of his vehicle, at which time Gutierrez and an

accomplice wrapped Gutierrez’s hands, mouth, and eyes with duct tape. (ROA,

Vol. II, PSI Report, ¶ 6). Next, Gutierrez’s accomplice drove Burdine’s vehicle

into an isolated field, where Gutierrez and the initial accomplice joined three

other accomplices in vandalizing and stripping Burdine’s vehicle while he lay

bound facedown in the backseat. (Id. ¶7). Finally, the carjackers shot Burdine in

the shoulder, and left him for dead, whereupon Burdine was able to free himself

from the duct tape and walk to a hospital. (Id.). 

Upon these findings, the sentencing court calculated an offense level of 34

and sentenced Gutierrez to 235 months of incarceration, followed by a three-year

term of supervised release. (ROA, Vol. I, Doc #15).

In his Anders brief, Gutierrez’s counsel argues that the district court erred

in three ways: first, he argues that the sentencing court should not have applied 

§ 2B3.1 because Gutierrez was not convicted for carjacking; second, he argues

that the carjacking enhancement should not have been used because the car was

never taken from the owner; and third, he argues that the four-point abduction
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enhancement should be reduced by one point reduction because of the brief

duration of the abduction.

Pursuant to Anders, we have provided Gutierrez with a copy of counsel’s

Anders brief and allowed him time “to raise any points that he chooses.” Anders,

386 U.S. at 744. Gutierrez has raised three arguments not raised in the Anders

brief: first, Gutierrez claims that he was denied his Sixth Amendment right to

effective counsel; second, Gutierrez claims that the government breached an

agreement to recommend incarceration in a federal prison; and third, Gutierrez

claims that he has been given inadequate access to law materials in prison.

Anders provides that if we find Gutierrez’s appeal wholly frivolous, we

should grant counsel’s request to withdraw and proceed to a decision on the

merits. Only “if [we] find any of the legal points arguable on their merits (and

therefore not frivolous) [must we], prior to decision, afford the indigent the

assistance of counsel to argue the appeal.” Anders, 386 U.S. at 744. Upon

review of Gutierrez’s arguments, we find the appeal wholly frivolous. 

Accordingly, we grant counsel’s request to withdraw as attorney of record, and

we affirm Gutierrez’s sentence.
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DISCUSSION

A. Inapplicability of U.S.S.G. § 2B3.1 Claim

Gutierrez’s counsel candidly admits in his Anders brief that this court has

rejected the proposition that a sentencing court cannot apply an offense level

applicable to conduct for which the defendant was not convicted. In United

States v. Willis, 925 F.2d 359 (10th Cir. 1991), we found that when a defendant

uses an illegal firearm to commit other offense conduct his sentence, U.S.S.G.

§ 2X1.1 requires “that he be sentenced according to such other offense conduct

even though his conviction is only for the unlawful possession of firearms.” Id.

at 361 (citing United States v. Madewell, 917 F.2d 301, 306 (7th Cir. 1990)). 

Further, the Supreme Court held just this term that a sentencing court may

consider offense conduct of which the defendant has been acquitted, so long as

that conduct has been proved by preponderance of evidence. United States v.

Watts, 117 S.Ct. 633, 638 (1997) (per curiam). 

In this case, Gutierrez cannot claim the force of a jury acquittal with regard

to the carjacking count; he can only claim that did not plead guilty to such a

count. Thus, the holding of Watts applies to Gutierrez’s argument, a fortiori.
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B. Inapplicability of the Carjacking Enhancement Claim

Gutierrez’s base offense level of 20, for robbery, was increased by 2 levels

because the offense involved a carjacking. See U.S.S.G. § 2B3.1(b)(1)(B). 

Carjacking, as defined in the United States Sentencing Guidelines, “means the

taking or attempted taking of a motor vehicle from the person or presence of

another by force and violence or by intimidation.” U.S.S.G. § 2B3.1, app. note 1. 

Gutierrez argues that this 2 level enhancement was inappropriate because he

never took, nor did he attempt to take, the vehicle from the defendant.

We have rejected the crux of Gutierrez’s argument in United States v.

Payne, 83 F.3d 346 (10th Cir. 1996). In Payne, we addressed the statutory crime

of carjacking, which at that time defined a carjacker, in relevant part, as one who,

“possessing a firearm . . ., takes a motor vehicle . . . from the person or presence

of another by force and violence, or by intimidation, or attempts to do so.” 18

U.S.C. § 2119 (as enacted 1992) (amended 1994 and 1996). In Payne, the

convicted carjacker never separated, nor attempted to separate, the car from its

owner; rather, he purposively kept the car owner with him in the car in order to

later force the owner to make cash withdrawals with an ATM card. Id. at 347. 

We upheld the defendant’s conviction after determining that “carjacking is a

general intent crime analogous to robbery,” and thus, “an intent to permanently
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deprive a victim of a motor vehicle is not required by the ‘taking’ element.” Id.

at 347 (citing United States v. Moore, 73 F.3d 666, 669 (6th Cir. 1996)). 

Because the sentencing guideline definition for “carjacking” is virtually

identical to the “carjacker” definition analyzed in Payne, we believe that Payne

has considered Gutierrez’s argument, and rejected it. Accordingly, we affirm the

district court’s use of the carjacking enhancement.

C. One Offense Level Reduction for the Brief Duration of

Abduction Claim

Gutierrez’s offense level was increased by four levels for the abduction of a

person to facilitate the commission of a carjacking. See § 2B3.1(b)(4)(A). 

Gutierrez relies upon the kidnapping guideline, U.S.S.G. § 2A4.1, for the

proposition that he is entitled to a one-level reduction for the fact that the

kidnapping victim was released within twenty-four hours of the abduction. See

U.S.S.G. § 2A4.1(b)(4)(C). We disagree.

The sentencing court applied the robbery guideline, not the kidnapping

guideline, and the robbery guideline makes no provision for an offense level

reduction predicated on the release of the victim within twenty-four hours. The

robbery guideline simply increases the offense level four points for an abduction. 

There is no dispute that an abduction occurred here. Gutierrez argues that the

sentencing court should have applied a kidnapping guideline reduction within a
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robbery guideline calculation, but the Sentencing Guidelines reject this approach. 

The Sentencing Guidelines require that a sentencing court which has crossreferenced to a certain guideline apply that entire guideline. United States

Sentencing Guideline § 1B1.5(a) provides that “a cross reference (an instruction

to apply another guideline) refers to the entire offense guideline (i.e., the base

offense level, specific offense characteristics, cross references, and special

instructions),” and U.S.S.G. § 1B1.5(d) provides that in references that apply only

when the referenced guidelines results in a greater offense level, “the greater

offense level means the greater final offense level.”

In rejecting an identical argument to the one made here by Gutierrez, the

Ninth Circuit has recently explained that “[t]he plain language of the Guidelines

does not allow the district court to apply both the kidnapping and robbery

guidelines. Rather, once it has been determined that the robbery Guideline yields

a higher final offense level, it must be applied.” United States v. Ortega-Reyes,

105 F.3d 1260, 1262 (1997). We find the Ortega-Reyes court’s analysis

persuasive, and thus reject Gutierrez’s offense level reduction argument.

D. Ineffective Assistance of Counsel Claim.

In his pro-se petition, Gutierrez argues that he was denied the effective

assistance of counsel below. We refuse to review this argument on direct appeal
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because “[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). Gutierrez has failed to show that his ineffective assistance

claim qualifies as one of those “rare instances” in which we will hear an

ineffective assistance claim on direct appeal. See Id. Accordingly, we dismiss

Gutierrez’s ineffective assistance claim. 

E. Breach of Plea Agreement.

Gutierrez next argues that his incarceration in state prison reflects the

breach of a plea agreement because his incarceration in federal prison “was

agreed upon by the State of Oklahoma and the Federal Court.” (pro se petition,

¶ 3). We construe Gutierrez’s claim to be that the government breached its

promise to recommend federal incarceration at sentencing, as the United States

Attorney’s Office does not actually imprison defendants.

We dismiss Gutierrez’s claim because Gutierrez has not submitted any

proof that the government agreed to recommend that he be incarcerated in federal

court. Ordinarily, such proof consists of the production of the actual plea

agreement. See e.g., United States v. Hawley, 93 F.3d 682, 690 (10th Cir. 1996)

(quoting the written plea agreement in discussing a breach of plea agreement

claim). Further, Gutierrez has not alleged that the government failed to
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recommend federal incarceration; he only argues that he was not sentenced to a

federal penitentiary. 

F. Inadequate Law Library Claim

Gutierrez’s final argument is that he has been denied constitutional access

to the courts because of the inadequacy of the law library in the Oklahoma prison

system. This claim pertains to the constitutionality of Gutierrez’s treatment in

prison, and thus should be brought under 42 U.S.C. § 1983 and not on direct

appeal. See Brandenburg v. Beaman, 632 F.2d 120, 122 (10th Cir. 1980)

(providing that “[a]n action challenging denial of access to the courts because an

inadequate law library may be brought pursuant to [42 U.S.C. § 1983].” (citing

Bounds v. Smith, 430 U.S. 817 (1977)). Accordingly, we dismiss Gutierrez’s

inadequate library claim without prejudice to refiling under 42 U.S.C. § 1983.

CONCLUSION

For the reasons stated above, we AFFIRM Gutierrez’s sentence and

DISMISS Gutierrez’s ineffective assistance of counsel claim, inadequate law

library claim, and breach of plea agreement claim, all without prejudice. 

Moreover, we GRANT counsel’s request to withdraw on the grounds that

Gutierrez’s appeal is without merit.
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The mandate shall issue forthwith.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge