UNITED STATES COURT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff–Appellee,

v.GUADALUPE BURCIAGAALCANTAR, Defendant–Appellant. No. 13-3083 (D.C. No. 6:12-CR -10234-MLB-1) (D. Kan.)

ORDER AND JUDGMENT *

Before LUCERO , McKAY , and MURPHY , Circuit Judges.

Guadalupe Burciaga-Alcanta r appeals following his guilty plea to Possession of a Firearm by an Illegal Alien in violation of 18 U.S.C. § 922(g)(5)(A). Burciaga-

* After examining appellant’s brief and the appellate record, this panel has determined unanimously that oral argument wo uld not materially assi st the determination of this appeal. See Fed. R. App. P. 34(a )(2) and 10th Cir. R. 34 .1(G). The case is therefore ordered submitted without oral argu ment. This order and judgment is not binding precedent, except under the doctri nes of law of the case, res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

### August 28, 2013
Elisabeth A. Shumaker Clerk of Court- 2- Alcantar’s counsel moves for leave to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). Exercising jurisdiction unde r 28 U.S.C. § 1291 an d 18 U.S.C. § 3742, we dismiss the appeal and grant co unsel’s motion to withdraw.
I Burciaga-Alcantar pled guilty to one co unt of Possession of a Firearm by an Illegal Alien. A presentence report calculated a total offense level of twelve and a criminal history category of VI, which resulted in an advisory Guide lines range of thirty to thirty-seven months’ imprisonment. Prior to sentencing, the district court issu ed a letter pursuant to Fed. R. Crim. P. 32(h), stating that it was cons idering an upward variance. The court initially sentenced Burciaga-Alcantar to sixty-five months’ im prisonment, but after he filed a motion to reconsider, the court reduced the sentence to forty-eight months. Burciaga-Alcantar timely appealed.
II If an attorney concludes that any appeal would be frivolous after conscientiously examining the case, counsel may so advise th e court and request perm ission to withdraw. Anders, 386 U.S. at 744. Counsel must submit a brief highligh ting any potentially appealable issues and submit the brief to th e defendant. Id. The defendant may then submit a pro se brief. If the court determines that the appeal is in fact frivolous upon careful examination of the record, it may gran t the request to wit hdraw and dismiss the- 3- appeal. Id. In this case, counsel sent a co py of the Anders brief to Burciaga-Alcantar, and Burciaga-Alcantar filed a pro se brief.
A Counsel’s Anders brief discusses the s ubstantive reasonableness of BurciagaAlcantar’s sentence. We “review all sent ences—whether inside, just outside, or significantly outside the Guidelines range —under a deferential abuse-of-discretion standard.” Gall v. United St ates, 552 U.S. 38, 41 (2007 ). Substantive reasonableness addresses whether “the length of the sentence is reasonable given all the circumstances of the case in light of the factor s set forth in 18 U.S.C. § 3553( a).” United States v. ReyesAlfonso, 653 F.3d 1137, 1145 (10th Cir. 2011) (quotation omitte d). “[A] district court’s sentence is substantively unreas onable only if it is arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v. Sayad, 589 F.3d 1110, 1116 (10th Cir. 2009) (quotation omitted). We conclude that Burciaga-Alcantar’s se ntence is not substantively unreasonable in light of the § 3553(a) factors. In consid ering these factors, the district court noted Burciaga-Alcantar’s four prior convictions for Driving Under the Influence of Alcohol (“DUI”), stating that such behavior created a “risk of danger” to the public, and concluding that an upward variance was n ecessary to reflect the seriousness of the offense, promote respect for the law, prov ide just punishment, and adequately deter further crimes.- 4- Counsel correctly notes that we have pr eviously held that imposing an upward variance due to a history of DUI convictions is not substantivel y unreasonable. United States v. Valtierra-Rojas, 468 F.3d 1235, 1242 (10th Cir. 2006) (affirming upward variance of thirty-three months); see also Un ited States v. Angel-Guzman, 506 F.3d 1007, 1018-19 (10th Cir. 2007) (emphasizing the se riousness of repeated DUIs in upholding sentence). Nothing in the record suggests that the district court abused its discretion in varying upward eleven months from Burciaga -Alcantar’s Guidelines range based on his history of DUIs. Nor have we uncovered any other potentia lly meritorious arguments not addressed by counsel in our inde pendent review of the record.
B Burciaga-Alcantar’s pro se brief argues th at counsel is ineffective for failing to represent him in this appeal. However, in general “[i]neffective assistance of counsel claims should be brought in co llateral proceedings, not on di rect appeal.” United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995 ). “A factual record must be developed in and addressed by the district court in the fi rst instance for effectiv e review.” Id. To the extent Burciaga-Alcantar se eks to raise this issue, it sh ould be pursued on collateral review. Burciaga-Alcantar also asserts that 18 U.S.C. § 922(g)(5)(A ), which prohibits possession of a firearm by an “alien . . . illegally or unlawfully in the United States,” is- 5- discriminatory and violates the First Amendment, Second Amendment, Ninth Amendment, and the Commerce Clause. Because Burciaga-Alcantar failed to raise these arguments below, he may not raise these claims on appeal, absent plain error. See United States v. Calderon, 428 F.3d 928, 932 (10th Cir. 2005). Bu t Burciaga-Alcantar does not address the four prongs of plain-error revi ew, see United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005), and instead asserts only conclusory claims of constitutional error. “[E]ven pr o se litigants must do more th an make mere conclusory statements regarding constitutio nal claims.” Brown v. Zava ras, 63 F.3d 967, 972 (10th Cir. 1995). Regardless, we conclude that any e rror is not plain: “Federal statutes that classify based on alienage need only a ratio nal basis.” United States v. Huitron-Guizar, 678 F.3d 1164, 1167 (10th Ci r. 2012), cert. denied, 133 S. Ct. 289 (2012) (rejecting Second Amendment and equa l protection challenges to § 922(g)(5)(A)).
III Because we are not presented with an y meritorious grounds for appeal, we GRANT counsel’s request to withdraw and DISMISS the appeal. Entered for the Court

Carlos F. Lucero Circuit Judge