* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### May 3, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 05-2252

v. (D. New Mexico) JOSE IVAN PEREA-GONZALEZ, also known as Jose I. Perea, also known as Jose Perea,

Defendant - Appellant. (D.C. No. CR-02-2255 JB)

ORDER AND JUDGMENT *

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

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34 (a)(2); 10th Cir. R. 34.1(G). This cause is therefore ordered submitted without oral argument.-2-

Following a jury trial, defendant-appellant Jose Iv an Perea-Gonzalez, a native and citizen of Mexico, was convicted of one count of illegal reentry by an alien who had been previously deported subsequent t o a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326( a) and (b)(2). He was sentenced to ninety-two months’ imprisonment. Pere a-Gonzalez has filed a timely notice of appeal. Perea-Gonzalez’s appointed counsel, Anthony White, has filed an Anders brief and moved to withdraw as counsel. See Anders v. California , 386 U.S. 738 (1967). Perea-Gonzalez has filed a one-page letterand a two-page document, which we have construed as his response to his coun sel’s Anders brief. He requests appointment of new appellate counsel. The government has declined to submit a brief. For the following reasons, we grant Perea-Gonzalez’s counsel’s motion to withdraw, we deny Perea-Gonzalez’s reques t for new appellate counsel, and we dismiss this appeal.

BACKGROUND Perea-Gonzalez was charged in a one-count indictment with unlawful reentry by a deported alien previously convicted fo r an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). He ini tially pled guilty. PereaGonzalez then filed a motion to withdraw his guilty plea. After successive court-1 The district court described Perea-Gonzalez’s crimi nal history as follows:

“[Perea-Gonzalez] received one [criminal history] p oint for a 1998 juvenile (continued...) -3- appointed counsel withdrew from his case, and afterseveral more motions, PereaGonzalez ultimately was granted permission to withd raw his guilty plea and proceed to trial. The jury convicted him of the on e count. For purposes of sentencing, the probation office pr epared a presentence report (“PSR”) which calculated a sentencing range under the United States Sentencing Commission, Guidelines Manual (Nov. 2002) (“USSG”). The PSR calculated a base offense level of eight, and then increased that offense level by sixteen pursuant to USSG §2L1.2(b)(1)(A) because Pe rea-Gonzalez’s prior felony conviction for domestic battery (enhanced) was a co nviction for a crime of violence. With a criminal history category of V, t he PSR calculated a Guideline sentencing range of 92 to 115 months. Perea-Gonzalez filed a Motion for Downward Adjustme nt in Criminal History, arguing that his criminal history over rep resented his dangerousness and the likelihood that he would commit future crimes. He asserted that a criminal history category of III was a more accurate reflect ion of his criminal history. The district court denied his motion, finding that “Per ea-Gonzalez’ criminal history . . . indicates that he has a recent history of vio lent crimes and probation violations.” Mem. Op. & Order at 3, R. Vol. I, doc . 56. 11 (...continued)

conviction for criminal trespass and obstruction of justice. He received two points for a 1999 conviction for assault and disord erly conduct. He received two points in 2000 for a conviction for domestic battery/bodily harm. He received three points for a 2000 conviction for battery (enh anced) and unlawful restraint. Each of these convictions occurred while Perea-Gonz alez was on conditional discharge or probation.” Mem. Op. & Order at 1-2, R. Vol. I, doc 56 (citing PSR ¶¶ 4-6, 17-21). -4- At his sentencing hearing, Perea-Gonzalez again sou ght a reduction of his criminal history category. Noting that he was bein g sentenced after the Supreme Court’s decision in United States v. Booker , 543 U.S. 220 (2005), rendered the Guidelines advisory rather than mandatory, Perea-Go nzalez “ask[ed] the Court to take [his] motion [for downward adjustment in crimi nal history] as a request to step outside the Guidelines, the Guidelines obvious ly being advisory at this point, and sentence Mr. Perea to a lower criminal history category were the Guidelines still in effect.” Tr. of Sentencing Hr’g at 5, R. Vol. IV. The court recognized its obligation to first calcul ate a Guideline sentence, and in doing so, it acknowledged Perea-Gonzalez’s r ight to argue that his criminal history category significantly over represented the seriousness of his criminal history. However, it concluded that criminal histo ry category V did not seriously over represent the severity of Perea-Gonzalez’s cri minal conduct: “these adult criminal convictions demonstrate that the defendanthas dangerous behavior, and any of these could have resulted in serious injury or some could have resulted in-5-

death. So I think the defendant’s criminal historycategory is correctly assessed, and I don’t believe a downward departure based on o ver representation of criminal history is appropriate.” Id. at 12. The court then adopted the factual findings and Gui deline calculations contained in the PSR, including the criminal history category of V, and sentenced Perea-Gonzalez to ninety-two months. The court stated: [A]fter considering all the factors in 3553(a), . . . the punishment that’s set forth in the Guidelines is appropriate f or this sort of offense given his criminal history category. I hav e considered the kinds of sentence and range established by the Guid elines, and I believe that a sentence of 92 months reflects the s eriousness of the offense and promotes respect for the law, provides just punishment, affords adequate deterrence and protects the public and because [of] what the Bureau of Prisons can offer, I think it ef fectively provides him with needed educational and vocational training and otherwise fully reflects the factors in 3553(a). Id. at 20.

DISCUSSION Anders authorizes counsel to request permission to withdr aw from representation of the defendant where counsel has c onscientiously examined the case and determined that any appeal would be wholly frivolous. Anders , 386 U.S. at 744; see also United States v. Calderon , 428 F.3d 928, 930 (10th Cir. 2005). Accordingly,2 In one of his submissions to this court, Perea-Gonz alez suggests that his

current counsel is ineffective because he has filed an Anders brief. Filing such a brief does not render counsel ineffective. To the extent Perea-Gonzalez is attempting to allege ineffectiveness in some other way, we would not address it here, as “[i]neffective assistance of counsel claim s ‘should be brought in collateral proceedings, not on direct appeal. Such claims brought on direct appeal are presumptively dismissible, and virtually all wi ll be dismissed.’” Calderon , (continued...) -6- [u]nder Anders , counsel must submit a brief to the client and the appellate court indicating any potential appealable issues based on the record. The client may then choose to submit a rguments to the court. The [c]ourt must then conduct a full examin ation of the record to determine whether the defendant’s claims are who lly 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. Id. (citing Anders , 386 U.S. at 744). After fully examining the reco rd and after considering both Perea-Gonzalez’s submissions and h is counsel’s Anders brief, we conclude that there are no nonfrivolous issues upon which Perea-Gonzalez may base his appeal. There is no basis on which to challenge the jury’s determination of guilt, and we conclude that Perea- Gonzalez’s sentence is reasoned and reasonable, taking into account the pr operly-calculated Guideline range and the § 3553(a) sentencing factors.

CONCLUSION We have carefully reviewed the record and Perea-Gon zalez’s arguments and can identify no nonfrivolous basis for an appea l. 2 We therefore GRANT2 (...continued)

428 F.3d at 931 (quoting United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc)). -7- Perea-Gonzalez’s counsel’s request to withdraw, we DENY Perea-Gonzalez’s request for new appointed counsel, and we DISMISS this appeal.
ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge