* This order and judgment is not binding precedent, except under the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.

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

### JAN 23 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 03-4022

v. (D. Utah) LEOBARDO CRUZ-MENDEZ, also known as Jose Manuel Vacame-Ruiz,

Defendant-Appellant. (D.C. No. 2:02-CR-399-TC)

ORDER AND JUDGMENT *

Before EBEL , HENRY , and HARTZ , 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. The case is therefore ordered submitted without oral argument.-2- I. BACKGROUND Leobardo Cruz-Mendez pleaded guilty to illegal re-e ntry of a previously removed alien, in violation of 8 U.S.C. § 1326. Th ough Mr. Cruz-Mendez had a base offense level of eight, the district court app lied a sixteen-level enhancement because Mr. Cruz-Mendez was deported after convicti on of an aggravated felony. The court also granted Mr. Cruz-Mendez a three-leve l reduction for acceptance of responsibility, leaving him with a total offense le vel of twenty-one. On January 14, 2003, the district court sentenced Mr. Cruz-Men dez to sixty-four months’ imprisonment, followed by thirty-six months’ superv ised release. This sentence falls within the middle of the fifty-seven to seven ty-one month range provided by the Sentencing Guidelines based on Mr. Cruz-Mendez’ s offense level of twentyone and his criminal history category of IV. Mr. Cruz-Mendez now appeals his sentence, arguing that the district court erred in (1) calculating his sentencing guideline r ange, (2) imposing a sentence in the middle of the guideline range, and (3) ordering his sentence to run consecutively to a previously imposed sentence for violation of supervised release. Mr. Cruz-Mendez also argues that his coun sel was ineffective. Mr. Cruz-Mendez’s attorney has filed a brief pursuant to Anders v. California , 386 U.S. 738 (1967), and has moved for leave to w ithdraw as counsel. The certificate of service indicates that Mr. Cruz- Mendez has been served with-3-

the brief and motion; no response has been received from him, and the government has declined to file a response brief. We grant leave to withdraw and affirm the conviction.

II. DISCUSSION Anders holds that “if counsel finds his case to be whollyfrivolous, after a conscientious examination of it, he should so advis e the court and request permission to withdraw.” 386 U.S. at 744. Counsel ’s request to withdraw must “be accompanied by a brief referring to anything in the record that might arguably support the appeal,” and a copy of this brief must be served on the client. Id. Upon receiving an Anders brief, this court “proceeds, after a full examinat ion of all the proceedings, to decide whether the case is wholly frivolous.” Id. We have fully examined the proceedings as required by Anders and conclude that this appeal is wholly without merit. In calculating Mr. Cruz-Mendez’s sentencing guideli ne range, the district court properly applied U.S.S.G. § 2L1.2, which esta blishes a base offense level of eight for aliens who illegally reenter the United S tates, see U.S.S.G. § 2L1.2(a), and provides for a sixteen-level enhancement if the defendant has previously been convicted of “a drug trafficking offense for which the sentence imposed exceeded 13 months.” U.S.S.G. § 2L1.2(b)(1)(A)(i). Mr. Cru z-Mendez’s 1995 conviction-4-

for possession of a controlled substance with intent to distribute, for which he was sentenced to twenty-fours months’ imprisonment, qualified him for the sixteen-level enhancement. The district court also correctly calculated Mr. CruzMendez’s criminal history category. The court dete rmined that Mr. Cruz-Mendez had four criminal history points based on two priordrug convictions and then added two points because Mr. Cruz-Mendez committed the offense while under supervised release, see U.S.S.G. § 4A1.1(d), and one additional point beca use the offense was committed less than two years after he was released from custody. See U.S.S.G. § 4A1.1(e). The court’s imposition of a sentence in the middle of the guideline range was also proper. Though the United States did reco mmend as a part of the plea agreement that Mr. Cruz-Mendez be sentenced at the low end of the guideline range, that recommendation did not limit the court’ s discretion to sentence Mr. Cruz-Mendez within the guideline range. The sixty- four month sentence imposed was well within that range. Mr. Cruz-Mendez argues that the court should have explained its reasons for sentencing him in the mid dle rather than the low end of the guideline range; however, 18 U.S.C. § 3553(c) o nly requires a court to state its reasons for imposing a particular sentence whenthe sentence is outside the range or the range exceeds twenty-four months. That is not the case here. At the time that he committed the instant offense, Mr. Cruz-Mendez was1 Section 5G1.3(b) was amended effective November 1, 2003. However,

“[w]e ordinarily apply the version of the sentencin g guidelines in effect at the time of sentencing.” United States v. Owens , 70 F.3d 1118, 1130 (10th Cir. 1995). Accordingly, Mr. Cruz-Mendez may invoke the former version of § 5G1.3(b). -5- serving a term of supervised release for his 1995 d rug conviction. As a result of his illegal reentry, Mr. Cruz-Mendez’s supervised r elease was revoked, and he was sentenced to nine months’ imprisonment. Mr. Cruz-Mendez argues that the district court should have ordered his sentence forillegal reentry to run concurrently with his sentence for violation of sup ervised release, since both sentences were based on the same underlying conduct

. See U.S.S.G.§ 5G1.3(b) (2002) (calling for concurrent sentencing when an “ undischarged term of imprisonment resulted from offense(s) that have bee n fully taken into account in the determination of the offense level for the inst ant offense”). 1 “U.S.S.G. § 5G1.3(b)’s central aim is to ensure no defendant is punished twice for the same crime.” United States v. Moyer , 282 F.3d 1311, 1316 (10th Cir. 2002) (internal quotation marks omitted).
In Moyer , we declined to apply U.S.S.G. § 5G1.3(b) where a defendant’s conduct resulted in revocation of a term of probati on and an additional sentence, because the original term of probation stemmed from a separate offense. Id. at 1317; s ee also United States v. Tisdale , 248 F.3d 964, 976-77 (10th Cir. 2001) (finding that U.S.S.G. § 5G1.3(c) provides the district court with the discretion to2 This application note was amended effective Novem ber 1, 2003.

Undischarged terms of imprisonment resulting from r evocation of supervised release are now addressed in Application Note 3(C), which provides that [s]ubsection (c) applies in cases in which the defe ndant was on federal or state probation, parole, or supervised release a t the time of the instant offense and has had such probation, parole, or supervised release revoked. Consistent with the policy set forth in Application Note 4 and subsection (f) of § 7B1.3 (Revocation of Probation or Supervised Release), the Commission recommends that the senten ce for the instant offense be imposed consecutively to the sentence imposed for the revocation. U.S.S.G. § 5G1.3, Application Note 3(C) (2003). -6- sentence a defendant consecutively or concurrently where the conduct giving rise to the instant offense resulted in revocation of pr obation). Moreover, at the time of Mr. Cruz-Mendez’s sentencing, U.S.S.G. § 5G1.3, Application Note 6 (2002) specifically provided that [i]f the defendant was on federal or state probatio n, parole, or supervised release at the time of the instant offen se, and has had such probation, parole, or supervised release revoked, the sentence for the instant offense should be imposed to run consecutiv ely to the term imposed for the violation of probation, parole, or supervised release. 2
See also U.S.S.G. § 7B1.3(f) (policy statement) (“Any term of imprisonment imposed upon the revocation of probation or supervi sed release shall be ordered to be served consecutively to any sentence that the defendant is serving, whether or not the sentence of imprisonment being served re sulted from the same conduct that is the basis of the revocation of probation orsupervised release.”).-7-

Consequently, the district court was well within it s discretion to order Mr. CruzMendez’s sentence for illegal reentry to run consec utively to his sentence for violation of supervised release. As to Mr. Cruz-Mendez’s ineffective assistance clai m, we have held that, generally, “[i]neffective assistance of counsel cla ims 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.” United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995); see also Massaro v. United States , 123 S.Ct. 1690, 1694 (2003) (“In light of the wayour system has developed, in most cases a motion brought under § 2 255 is preferable to direct appeal for deciding claims of ineffective-assistanc e.”). We therefore decline to consider Mr. Cruz-Mendez’s ineffective assistance c laim in this direct appeal. After careful review of the proceedings, we agree w ith counsel that no nonfrivolous grounds for appeal appear on this record. Accordingly, we AFFIRM the conviction and GRANT Mr. Cruz-Mendez’s counsel’s re quest to withdraw. We DISMISS Mr. Cruz-Mendez’s claim for ineffective ass istance of counsel.

Entered for the Court,

Robert H. Henry Circuit Judge