*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand 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. 36.3. 

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

### FEB 12 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.JUAN DIEGO ANGULOVALENZUELA, Defendant-Appellant. No. 00-1135 (D. Colo.) (D.Ct. No. 99-CR-367-D)

____________________________ ORDER AND JUDGMENT *

Before BRORBY , KELLY , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.1 See Anders v. California , 386 U.S. 738, 744 (1967) (requiring counsel who finds

an appeal wholly frivolous to advise the court, request permission to withdraw, and provide an accompanying brief referring to anything in the record that might arguably support the appeal.) Accordingly, Mr. Angulo-Valenzuela’s appellate attorney requestedpermission to withdraw as counsel and provided a brief outlining Mr. AnguloValenzuela’s claims and noting Mr. Angulo-Valenzuela’s appeal was without merit and frivolous.

-2- Appellant Juan Diego Angulo-Valenzuela, appearing pro se and through Anders counsel, 1 appeals the sentence the district court imposed fo llowing his guilty plea. We exercise our jurisdiction under 28 U.S.C. § 1291 and affirm.

A grand jury indicted Mr. Angulo-Valenzuela for ill egal entry of an alien into the United States after deportation in violati on of 8 U.S.C. § 1326(a), which requires a maximum of two years imprisonment. The government then filed a notice of sentence enhancement under 8 U.S.C. § 132 6(b)(2), which sets a maximum sentence of twenty years imprisonment for i llegal entry after an aggravated felony conviction committed prior to dep ortation. The government noted Mr. Angulo-Valenzuela qualified for a sentenc e enhancement under § 1326(b)(2) because he received a state conviction for his possession of marijuana with intent to distribute prior to his de portation. Mr. AnguloValenzuela subsequently pled guilty to the indictme nt, acknowledging the applicability of both § 1326(b)(2) and United State s Sentencing Guideline-3-

(U.S.S.G.) § 2L1.2, which requires a sixteen-level increase in the base offense level for an aggravated felony committed prior to d eportation. Prior to sentencing, a probation officer issued a Presentenc e Investigation Report, which recommended: 1) applying a base offense level of 8 for a violation of 8 U.S.C. § 1326(a) and (b)(2); 2) enhancing the offense leve l by sixteen levels under U.S.S.G. § 2L1.2(b)(1)(A) because Mr. Angulo-Valenz uela was deported after conviction for an aggravated felony; and 3) reducin g the offense level by three levels under U.S.S.G. § 3E1.1(a) and (b) for accept ance of responsibility. Based on a resulting offense level of 21 and a criminal h istory category of III, the probation officer recommended a sentence of forty-s ix months. In the presentence report, the probation officer stated th ere were no known factors warranting departure. Mr. Angulo-Valenzuela made n o objection to the Presentence Investigation Report. Following the se ntencing hearing, the district court applied the probation officer’s recommended c alculations and sentenced Mr. Angulo-Valenzuela to forty-six months imprisonment. The district court found no reason to depart from the guidelines range.

On appeal, Mr. Angulo-Valenzuela’s counsel acknowle dges Mr. AnguloValenzuela’s sentence “was not imposed in violation of law or as a result of an incorrect application of the sentencing guidelines. ” In so doing, counsel points-4-

out Mr. Angulo-Valenzuela agreed in his plea agreem ent to the sentencing guideline calculations applied by the probation off icer and district court. In response, Mr. Angulo-Valenzuela filed his own pro se brief, asserting: 1) his Colorado state felony conviction is not an “aggravated felony” for the purpose of a sixteen-level enhancement under U.S.S.G. § 2L1.2; 2) the statutes under which the district court convicted and sentenced him – 8 U.S.C. § 1326(a) and (b)(2) – are ambiguous; 3) his trial counsel should have est ablished, after a thorough investigation of the relevant facts and law, that application of the rule of lenity is warranted with respect to the penalty provided unde r § 1326(b)(2); 4) his trial counsel failed to file a motion for, and the distri ct court failed to apply, a downward departure under U.S.S.G. § 5K2.0; and 5) h is trial counsel “should have [been] aware of the disparity among districts to file for a reduction of sentence.” Although Mr. Angulo-Valenzuela raises t hese issues as grounds for appeal, he fails to provide any discussion or autho rity supporting them.

Generally, we review the district court’s factual f indings for clear error and its application of the Sentencing Guidelines de novo

. See United States v. Roberts , 185 F.3d 1125, 1144 (10th Cir. 1999), cert. denied, 120 S. Ct. 1960 (2000). However, because Mr. Angulo-Valenzuela didnot raise any of his sentencing issues prior to sentencing, we apply a p lain error standard of review.-5-

See United States v. Massey , 48 F.3d 1560, 1568 (10th Cir.), cert. denied, 515 U.S. 1167 (1995). In addition, an appeal which adva nces no reasoned argument or legal authority is considered insufficient and ther efore, we many deem the unsupported issues waived. See United States v. Hardwell , 80 F.3d 1471, 1492 (10th Cir. 1996).

We begin by noting Mr. Angulo-Valenzuela fails to s upport any of the issues raised on appeal with a reasoned argument orlegal authority. This alone is sufficient reason to dismiss his appeal. See Hardwell , 80 F.3d at 1492. However, even if we consider the issues Mr. Angulo-Valenzuel a raises, his appeal must nevertheless fail.

First, it is well established a state felony convic tion for possession of a controlled substance constitutes an aggravated felo ny for purposes of 8 U.S.C. § 1326(b)(2). See United States v. Lugo , 170 F.3d 996, 1006 (10th Cir. 1999); United States v. Valenzuela-Escalante , 130 F.3d 944, 945-47 (10th Cir. 1997); United States v. Cabrera-Sosa , 81 F.3d 998, 999-1000 (10th Cir.), cert. denied, 519 U.S. 885 (1996). Thus, Mr. Angulo-Valenzuela’s state conviction for possession of marijuana with intent to distribute i s an “aggravated felony.” Id. Consequently, the district court did not error in applying either 8 U.S.C.-6-

§ 1326(b)(2) or U.S.S.G. § 2L1.2(b)(1)(A), which bo th prescribe a sentence enhancement for a previous deportation after an agg ravated felony conviction. See 8 U.S.C. 1326(b)(2); U.S.S.G. § 2L1.2(b)(1)(A); see also United States v. Cisneros-Cabrera , 110 F.3d 746, 748 (10th Cir.), cert. denied, 522 U.S. 969 (1997).

Second, we have determined that both 8 U.S.C. §§ 13 26(a) and 1326(b)(2), as well as U.S.S.G. § 2L1.2, are not ambiguous. See Cisneros-Cabrera , 110 F.3d at 747-48 (discussing § 1326(b)(2) and § 2L1.2); United States v. Meraz-Valeta , 26 F.3d 992, 996-97 (10th Cir. 1994) (considering § 1326(a)). As a result, Mr. Angulo-Valenzuela’s argument that both these statut es are ambiguous is clearly meritless.

We next turn to Mr. Angulo-Valenzuela’s contention his trial counsel failed to raise the rule of lenity, argue for a downward d eparture, or somehow acknowledge the “disparity among districts to file for a reduction of sentence.” To the extent Mr. Angulo-Valenzuela is claiming ine ffective assistance of counsel, we have held “[i]neffective assistance of counsel claims should be brought in collateral proceedings, not on direct ap peal.” United States v. Boigegrain , 155 F.3d 1181, 1186 (10th Cir. 1998) (quotation m arks and citation-7-

omitted), cert. denied, 525 U.S. 1083 (1999). Only in the very rare inst ance when an ineffective assistance claim is fully developed in the record, will we hear it for the first time on appeal. Id. In this case, our review of the record and Mr. Angulo-Valenzuela’s failure to discuss the issues l eads us to conclude the record is not fully developed for the purpose of consideri ng his ineffective assistance of counsel claims on direct appeal.

In the event Mr. Angulo-Valenzuela is not attemptin g to raise ineffective assistance of counsel claims, his arguments neverth eless lack merit. First, we have already rejected the same argument that the en hanced penalty assessed under 8 U.S.C. § 1326(b) and U.S.S.G. § 2L1.2(b) should b e given a more lenient interpretation under the rule of lenity. See United States v. Frias-Trujillo , 9 F.3d 875, 878 (10th Cir. 1993). Second, if Mr. Angulo-V alenzuela is asserting his sentence is somehow disparate with other defendants with similar records and guilty conduct, he fails to cite to any facts in th e record or elsewhere supporting a disparity of sentence argument. See United States v. Contreras , 108 F.3d 1255, 1271 (10th Cir.), cert. denied, 522 U.S. 839 (1997). Finally, we lack jurisdicti on to address Mr. Angulo-Valenzuela’s assertion the di strict court improperly failed to apply a downward departure. We have held that “ [a]bsent the trial court’s clear misunderstanding of its discretion to depart, or it s imposition of a sentence which-8-

violates the law or incorrectly applies the guideli nes, we have no jurisdiction to review a refusal to depart” downward. United States v. Saffo , 227 F.3d 1260, 1271 (10th Cir. 2000). Because Mr. Angulo-Valenzue la fails to show the district court misunderstood its discretion to depart downward, or that it improperly applied the law or guidelines in sentencing him, we lack jurisdiction to consider the district court’s refusal to depart downward.

For these reasons, we grant Mr. Angulo-Valenzuela’s counsel permission to withdraw, and AFFIRM Mr. Angulo-Valenzuela’s sentence and conviction.

Entered by the Court: WADE BRORBY United States Circuit Judge