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 gu ilty plea for distribution of fentanyl resulting in death. His counsel moves for leav e to withdraw under Anders v. California, 386 U.S. 738 (1967). Exercising jurisdiction under 28 U.S.C. § 12 91, we dismiss the appeal and grant counse l’s motion to withdraw.

* The case is unanimously ordered subm itted 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 This order and judgment is not binding precedent, except under the doctri nes of law of the case, res judicata, and collateral estoppel. The court generally disf avors 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 agre ement, 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 un der 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1. In the plea agreement, Schulz ac knowledged that he was waiving various constitutional right s 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 treate d for mental illness, was not under the influence of drugs or alcohol, had discussed the plea agreement with his attorney, and understood the plea agreemen t and its consequences. Following the colloquy, the district court accep ted Schulz’s guilty plea. Although the crime to which Schulz pl ed 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, reco mmending a sentence of ten

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

II If an attorney conscientious ly examines a case but concludes that an appeal would be frivolous, counsel may so advise the c ourt and request permission to withdraw. Anders, 386 U.S. at 744. Under these ci rcumstances, 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, th e court determines that the appeal is in fact frivolous, it may grant the request to w ithdraw and dismiss the appeal. Id.

Counsel in the case at bar no tes one potentially appealable issue: the substantive

reasonableness of Schulz’s sentence. “We re view for abuse of discretion the district court’s sentencing decision.” United States v. Osborne, 5 93 F.3d 1149, 1151 (10th Cir. 2010) (citation omitted). A belo w-Guidelines sentence is pr esumed to be reasonable.

See United States v. Balbin-M esa, 643 F.3d 783, 788 (10th Cir. 2011). Having reviewed the record and the appellate filings, we agree with counsel th at the substantive reasonableness of Schulz’s sentence would be a frivolous issue to appeal. After counsel submitted an Anders brief, Sc hulz elected to file a pro se brief. In that brief, he argues that his counsel was ineffe ctive at both the trial and appellate stages. However, ineffective assistance claims genera lly should be pursue d in a habeas petition rather than on direct appeal so that a district court may co mpile 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 ineffect iveness claim, we decline to consider it on direct appeal. Schulz also argues that the district cour t 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 ar e 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 hi story. Accordingly, we cannot consider this

claim.

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