* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore submitted without o ral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel. The court ge nerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment 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 

### APR 20 2005 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ORLANDO ZAMARRON-PEREZ, also known as Javier Fernandez, also known as Enrique Martinez, also known as Gerardo Martinez, also known as Juan Carlos Perez, Defendant-Appellant. No. 04-2247 (D.C. No. CR-04-1033 JB) (New Mexico)



### ORDER AND JUDGMENT *

Before SEYMOUR , HARTZ , and McCONNELL , Circuit Judges.
Orlando Zamarron-Perez pled no contest to one countof reentry of a deported alien previously convicted of an aggravate d felony in violation of 8-2-

U.S.C. §§ 1326(a) and (b)(2). Based on a total off ense level of thirteen and a criminal history category of VI, Mr. Zamarron-Perez ’s guidelines sentence range was calculated at thirty-three to forty-one months incarceration. The district court sentenced him at the top of that range to a forty-o ne month term. Mr. ZamarronPerez’s counsel filed a brief pursuant to Anders v. California , 386 U.S. 738 (1967), and moved for leave to withdraw as counsel. We grant counsel’s motion to withdraw and dismiss the appeal. Anders holds that if counsel finds a case to be wholly fri volous after conscientious examination, he may so advise the cou rt and request permission to withdraw. Counsel must also submit to both the cou rt and his client a brief referring to anything in the record arguably supportive of the appeal. The client may then raise any point he chooses, and the court thereafter undertakes a complete examination of all proceedings and decides whether the appeal is in fact frivolous. If it so finds, it may grant counsel’s request to withdraw and dismiss the appeal. Id. at 744. Pursuant to Anders , counsel provided Mr. Zamarron-Perez with a copy of his appellate brief and Mr. Zamarron -Perez filed a pro se reply brief raising two issues. Mr. Zamarron-Perez first complains that he was deni ed his Sixth Amendment right to effective assistance of counsel. We have held that ineffective assistance of trial counsel claims shou ld be brought in collateral-3-

proceedings, not on direct appeal. 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. Mr. Zamarron-Perez has failed to show that his claim qualifies as one of t hose “rare instances” in which we should hear an ineffective counsel challenge on direct review. Id. Mr. Zamarron-Perez also contends his sentence was i mposed in violation of United States v. Booker , 125 S. Ct. 738 (2005). In Booker , the Supreme Court applied the rule it expressed in Apprendi v. New Jersey , 530 U.S. 466 (2000) , to the Federal Sentencing Guidelines, holding that the Sixth Amendment requires “[a]ny fact (other than a prior conviction) which i s necessary to support a sentence exceeding the maximum authorized by the fa cts established by a plea of guilty or a jury verdict must be admitted by the de fendant or proved to a jury beyond a reasonable doubt.” 125 S. Ct. at 756. To remedy the guidelines’ Sixth Amendment problem, the Court severed and excised 18 U.S.C. § 3553(b)(1), which required mandatory application of the guideli nes. Id. at 756-57, 765. As a result, the guidelines are now advisory in all case s. Id. at 757. In addition, the Court expressly stated that its “remedial interpret ation of the Sentencing Act” must be applied “to all cases on direct review.” Id . at 769. In determining Mr. Zamarron-Perez’s sentence, the district court did n ot rely upon judge-found facts, but it did apply the then-mandatory federal sentenc ing guidelines. We must-4-

therefore evaluate Mr. Zamarron-Perez’s sentence inlight of Booker

. Because Mr. Zamarron-Perez did not raise his non-co nstitutional Booker claim in district court, we review for plain error. F ED R. C RIM
. P. 52(b); United States v. Gonzalez-Huerta , No. 04-2045, 2005 WL 807008, at *3 (10th Cir. Apr

. 8, 2005) ( en banc ). To establish plain error, Mr. Zamarron-Perez mu st demonstrate there was (1) error (2) that was plain and (3) affected his substantial rights. United States v. Cotton , 535 U.S. 625, 631 (2002); Gonzalez-Huerta , 2005 WL 807008, at *3. If he satisfies his burden of es tablishing the first three prongs of the plain error test, we may exercise our discre tion to correct the error if it “seriously affect[ed] the fairness, integrity or pu blic reputation of judicial proceedings.” Johnson v. United States , 520 U.S. 461, 469-70 (1997) (quoting United States v. Olano , 507 U.S. 725, 736 (1993)); Gonzalez-Huerta , 2005 WL 807008, at *3. Mr. Zamarron-Perez easily satisfies the first two p rongs of plain error analysis. First, the district court, albeit unknow ingly, committed error by applying the guidelines as mandatory in sentencing Mr. Zamarron-Perez. See Gonzalez-Huerta , 2005 WL 807008, at *3. Second, the error is now “plain” or “obvious.” Johnson , 520 U.S. at 468 (“where the law at the time of tr ial [or sentencing] was settled and clearly contrary to the law at the time of appeal – it is enough that an error be ‘plain’ at the time of appe llate consideration”). We need-5-

not decide whether Mr. Zamarron-Perez can satisfy h is burden under the third prong of plain error analysis “because even assumin g [his] substantial rights were affected, the error did not seriously affect the fa irness, integrity, or public reputation of judicial proceedings.” Cotton , 535 U.S. at 632-33; Johnson , 520 U.S. at 469-70; Gonzalez-Huerta , 2005 WL 807008, at *6 (“We need not determine whether [the defendant] can satisfy this burden because even if he were to meet the third prong, he must also satisfy the f ourth prong to obtain relief.”). This court “will not notice a non-constitutional er ror, such as the one in the case before us, unless it is both ‘particularly egr egious’ and our failure to notice the error would result in a ‘miscarriage of justice .’” Gonzalez-Huerta , 2005 WL 807008, at *7 (quoting United States v. Gilkey , 118 F.3d 702, 704 (10th Cir. 1997)). After the district court determined that M r. Zamarron-Perez’s applicable guidelines range was thirty-three to forty-one months, it opted to sentence Mr. Zamarron-Perez to a forty-one month term of impriso nment. In other words, the court exercised its discretion and in doing so sent enced Mr. Zamarron-Perez to serve the maximum term of imprisonment it could law fully impose. As a result, any argument that the district court might have sen tenced Mr. Zamarron-Perez differently had it understood it had discretion to do so is simply unpersuasive. Given “there is no record evidence to support a low er sentence, we cannot conclude that [Mr. Zamarron-Perez’s] sentence is particularly egregious or a-6-

miscarriage of justice.” Id . at *8. Because Mr. Zamarron-Perez has no meritorious groun ds for appeal, we GRANT counsel’s request to withdraw and we DISMISS the appeal.

ENTERED FOR THE COURT Stephanie K. Seymour Circuit Judge