UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

UNITED STATES OF AMERICA,

 Plaintiff–Appellee,

v.

DANIEL CHARLES SCHULZ,

Defendant–Appellant.

No. 11-8024

(D.C. No. 1:10-CR-00324-NDF-2)

(D. Wyo.)

ORDER AND JUDGMENT*

Before LUCERO, ANDERSON, and GORSUCH, Circuit Judges. 

 

 Daniel Schulz appeals following his guilty plea for distribution of fentanyl 

resulting in death. His counsel moves for leave to withdraw under Anders v. California, 

386 U.S. 738 (1967). Exercising jurisdiction under 28 U.S.C. § 1291, we dismiss the 

appeal and grant counsel’s motion to withdraw. 

 

* The case is unanimously ordered submitted without oral argument pursuant to 

Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

January 5, 2012

Elisabeth A. Shumaker 

Clerk of Court
-2- 

I

 Schulz was charged with conspiracy to distribute fentanyl and distribution of 

fentanyl resulting in death. Pursuant to a written plea agreement, Schulz pled guilty to 

the latter count in exchange for dismissal of the former count and the government’s 

agreement to consider moving for a downward departure under 18 U.S.C. § 3553(e) and 

U.S.S.G. § 5K1.1. In the plea agreement, Schulz acknowledged that he was waiving 

various constitutional rights by pleading guilty. 

 At a change of plea hearing, the district court conducted a colloquy with Schulz. 

The district court ensured that Schulz was not being treated for mental illness, was not 

under the influence of drugs or alcohol, had discussed the plea agreement with his 

attorney, and understood the plea agreement and its consequences. Following the 

colloquy, the district court accepted Schulz’s guilty plea. 

 Although the crime to which Schulz pled guilty carries a twenty-year minimum 

sentence, see 21 U.S.C. § 841(b)(1)(C), the government moved for a downward departure 

pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, recommending a sentence of ten 

years. Schulz successfully moved for a further departure, resulting in a sentence of 96 

months’ imprisonment. 

II

 If an attorney conscientiously examines a case but concludes that an appeal would 

be frivolous, counsel may so advise the court and request permission to withdraw. 

Anders, 386 U.S. at 744. Under these circumstances, counsel must submit a brief 

highlighting any potentially appealable issues. The defendant may then file a pro se 
-3- 

brief. If, upon carefully examining the record, the court determines that the appeal is in 

fact frivolous, it may grant the request to withdraw and dismiss the appeal. Id. 

Counsel in the case at bar notes one potentially appealable issue: the substantive 

reasonableness of Schulz’s sentence. “We review for abuse of discretion the district 

court’s sentencing decision.” United States v. Osborne, 593 F.3d 1149, 1151 (10th Cir. 

2010) (citation omitted). A below-Guidelines sentence is presumed to be reasonable. 

See United States v. Balbin-Mesa, 643 F.3d 783, 788 (10th Cir. 2011). Having reviewed 

the record and the appellate filings, we agree with counsel that the substantive 

reasonableness of Schulz’s sentence would be a frivolous issue to appeal. 

 After counsel submitted an Anders brief, Schulz elected to file a pro se brief. In 

that brief, he argues that his counsel was ineffective at both the trial and appellate stages. 

However, ineffective assistance claims generally should be pursued in a habeas petition 

rather than on direct appeal so that a district court may compile an appropriate record. 

See Massaro v. United States, 538 U.S. 500, 504-05 (2003). Because the record in this 

case is not developed as to Schulz’s ineffectiveness claim, we decline to consider it on 

direct appeal. 

 Schulz also argues that the district court erred in calculating his criminal history 

category. However, he does not explain the manner in which he believes the district 

court erred. “Arguments inadequately briefed in the opening brief are waived.” Adler v. 

Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998). Although we must construe a 

pro se litigant’s arguments liberally, we cannot serve as an advocate. See United States 

v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009). Schulz has not explained how he believes 
-4- 

the district court miscalculated his criminal history. Accordingly, we cannot consider this 

claim. 

III

 Because we are not presented with any meritorious grounds for appeal, we 

GRANT counsel’s request to withdraw and DISMISS the appeal. 

Entered for the Court 

 Carlos F. Lucero 

 Circuit Judge