* This order and judgment is not binding precedent, e xcept under the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

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

### May 3, 2006 Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 05-1134

v. (D. Colorado) BENJAMIN SANCHEZ-VALDEZ,

Defendant - Appellant. (D.C. No. 04-CR-41-K)

ORDER AND JUDGMENT *

Before TACHA, Chief Circuit Judge, ANDERSON and BALDOCK , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist in 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.-2-

Defendant-Appellant Benjamin Sanchez-Valdez pled gu ilty to one count of unlawful reentry by a deported alien previously con victed for an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)( 2). He was sentenced to fortytwo months’ imprisonment. Sanchez-Valdez has fileda timely notice of appeal. Sanchez-Valdez’s appointed counsel, Raymond P. Moor e, has filed an Anders brief and moved to withdraw as counsel. See Anders v. California , 386 U.S. 738 (1967). Sanchez-Valdez has filed a respon se brief to the Anders brief. The government has declined to submit a brief. Forthe following reasons, we grant Sanchez-Valdez’s counsel’s motion to withdrawand we dismiss this appeal.

BACKGROUND Sanchez-Valdez was charged in a one-count indictment with unlawful reentry by a deported alien previously convicted fo r an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). He eve ntually entered into a plea agreement, in which he admitted his guilt in exchan ge for the government’s agreement to recommend a three-level reduction in h is base offense level for acceptance of responsibility. The government also agreed to recommend a forty percent downward departure from the sentencing rang e calculated under the United States Sentencing Commission, Guidelines Man ual (“USSG”) (Nov. 2004), in exchange for his substantial assistance.-3-

At Sanchez-Valdez’s change of plea hearing, he was advised of: the possible penalties he faced for the offense to whic h he was pleading guilty, his rights to counsel, to a jury trial, to the presumpt ion of innocence, to proof of guilt beyond a reasonable doubt, to confrontation of witn esses, to be free from compelled self-incrimination, and to compulsory pro cess. Sanchez-Valdez indicated he understood those rights and that, by p leading guilty, he was giving up those rights. The district court also explained th e potential impact of United States v. Booker , 543 U.S. 220 (2005), which was pending before the Supreme Court at the time of the hearing. As a factual basis for the plea, and as articulated in the plea agreement, the government proffered that its evidence would show: that Sanchez-Valdez was a citizen of Mexico; that on June 11, 1996, he was co nvicted in the state district court for Adams County, Colorado, of second-degree assault (an aggravated felony) and sentenced to fifteen months’ imprisonme nt; that he was removed from the United States on March 18, 1999, pursuant to a removal order issued by an immigration judge; that he illegally reentered the United States and was removed for a second time on November 21, 2002; that he ill egally reentered the United States once again on June 10, 2003; and that he was found to be illegally in the United States on December 30, 2003, after being arr ested for public intoxication. Sanchez-Valdez admitted those facts, but stated that, with respect to the Adams-4-

County case, he was misled into accepting a deal an d that he did not receive the sentence he thought he would. He nonetheless reite rated that he wished to proceed with the plea agreement, and he pled guilty

. The probation office prepared a presentence report (“PSR”), which calculated an adjusted offense level of 21, which i ncluded the three-point reduction for acceptance of responsibility and a cr iminal history category of V. This yielded a Guideline sentencing range of seventy to eighty-seven months. Neither the government nor Sanchez-Valdez filed anywritten objections to the PSR. Pursuant to its commitment in the plea agreem ent, the government filed a motion for a downward departure of forty percent fr om the Guideline range. The PSR accordingly recommended a sentence of forty-two months. At his sentencing hearing, Sanchez-Valdez requesteda further downward departure, based upon two concerns. First, he argu ed that the circumstances surrounding his 1996 conviction for assault, which resulted in a sixteen-level increase in his offense level and raised his crimin al history category from IV to V, were unfair because he had planned to go to trial b ut agreed at the last minute to plead guilty with the understanding that he would r eceive a sentence of probation. Instead, he was sentenced to fifteen months. Sanch ez-Valdez accordingly asked for a further six-month reduction in his sentence.-5-

Second, Sanchez-Valdez produced documents showing h e had been granted permanent resident status in 1999, and he alleged that he had subsequently entered the country in reliance on those documents. He argued this supported an additional reduction of his sentence. In pronouncing his sentence, the district court fol lowed Bookerand considered the sentencing factors contained in 18 U .S.C. § 3553, as well as the applicable Guideline range. After agreeing to the forty percent reduction sought by the government, the court considered Sanchez-Val dez’s arguments for a further reduction. With respect to his argument concerning his 1996 conviction for assault, while the court “appreciate[d] that [Sanch ez-Valdez] feels that he was not treated fairly in that case and that he was not ade quately represented[,]” the court nonetheless held that: [h]is remedy . . . for that was at the time that co nviction occurred. It was either to seek an appeal from the conviction orcome to this court for relief under habeas corpus. The time periods for both of those actions have expired, and this court cannot g o back and reopen that particular case to address any problems that o ccurred in it. Tr. of Sentencing Hr’g at 22, R. Vol. III. The cou rt further stated that, to the extent Sanchez-Valdez was arguing that the 1996 con viction resulted in an overstatement of his criminal history, his argumentwas unavailing because Sanchez-Valdez “has . . . 14 convictions in a 15-ye ar period” and that “one has to work pretty hard to get 14 convictions in 15 years, especially when one is moving-6-

in and out of the country either voluntarily or inv oluntarily during that same time period.” Id. at 22-23. With respect to his argument concerning his prior p ermanent resident status, the court stated that it was irrelevant to his current offense because “the fact of the matter is [Sanchez-Valdez] didn’t have authorization when he most recently reentered, and that’s what we’re concernedwith.” Id. at 24. The court accordingly rejected Sanchez-Valdez’s argument for a further downward departure and sentenced him to forty-two months. Sanchez-Valdez’s attorney, in his Anders brief, argues that an appeal of Sanchez-Valdez’s conviction and/or sentence would b e frivolous because there is no viable challenge to the validity of Sanchez-Vald ez’s guilty plea; SanchezValdez received a bargained-for downward departure; and the district court’s sentence was otherwise reasonable. Sanchez-Valdez’ s response to his counsel’s Anders brief appears to assert that he was wrongly convic ted because his permanent resident card purported to be valid throu gh 2009; that his counsel was ineffective; that the plea agreement incorrectly st ates that he was deported three1 The plea agreement actually states that Sanchez-Val dez was deported twice

before his arrest on the current charge of illegal reentry. Contrary to what Sanchez-Valdez asserts, the agreement does not stat e that he was deported three times previously. -7- times previously when in fact he had only been depo rted twice before; 1 and that his guilty plea was the product of coercion.

DISCUSSION Anders authorizes counsel to request permission to withdr aw where counsel has conscientiously examined the case and has determined that any appeal would be wholly frivolous. Anders , 386 U.S. at 744; see also United States v. Calderon , 428 F.3d 928, 930 (10th Cir. 2005). Accordingly, [u]nder Anders , counsel must submit a brief to the client and the appellate court indicating any potential appealable issues based on the record. The client may then choose to submit a rguments to the court. The Court must then conduct a full examinat ion of the record to determine whether defendant’s claims are wholly frivolous. If the court concludes after such an examination that the appeal is frivolous, it may grant counsel’s motion to withdraw and may dismiss the appeal. Id. (citing Anders , 386 U.S. at 744). After fully examining the reco rd and after considering both Sanchez-Valdez’s response and the Anders brief filed by his counsel, we conclude that there are no non-frivolou s issues upon which SanchezValdez may base his appeal.-8-

Sanchez-Valdez’s attorney argues that “[b]ecause th e district court thoroughly explained the consequences of the guiltyplea, addressed the specific terms of the plea agreement, and in every way compl ied with [Fed. R. Crim. P.] 11, counsel can find no non-frivolous challenge to the guilty plea.” Appellant’s Opening Br. at 8. After examining the record, we a gree. There is no basis for a conclusion that the plea agreement was the product of coercion. Further, Sanchez-Valdez’s sentence is reasonable. Following the Supreme Court’s decision in Booker , 543 U.S. 220, the Guidelines are advisory. Nonetheless, courts must still “consider” the appli cable Guideline range. United States v. Gonzalez-Huerta , 403 F.3d 727, 748-49 (10th Cir.) (en banc), cert. denied , 126 S. Ct. 495 (2005). We review for reasonablen ess the ultimate sentence imposed. Booker , 543 U.S. at 261-62 (Breyer, J.). In this case, the district court first departed dow nward from the suggested Guideline range by forty percent based on the government’s motion, as promised in the plea agreement. Sanchez-Valdez argues the c ourt should have departed downward still further, based upon the alleged unfa irness surrounding his 1996 assault conviction and because of his earlier-issue d permanent resident documents. The district court explained why it dec lined to depart further on the basis of those two arguments. Its decision was “re asoned and reasonable.” United States v. Tsosie , 376 F.3d 1210, 1218 (10th Cir. 2004) (further quo tation-9-

omitted), cert. denied , 543 U.S. 1155 (2005); see also Booker , 543 U.S. at 262 (citing with approval Tsosie , 376 F.3d at 1218-19 (noting that a sentence’s “reasonableness” hinged on whether the decision was both “reasoned and reasonable”)); United States v. Kristl , 437 F.3d 1050, 1055 (10th Cir. 2006) (per curiam). Sanchez-Valdez suggests that his counsel was ineffe ctive and that ineffectiveness caused him to enter into a coerced plea agreement in this case, or, at least, a plea agreement which he now seeks to re fute. Sanchez-Valdez does not articulate with any specificity in what way his cou nsel was ineffective. He asserts that “encourag[ing] his client to plead guilty and sign an open ended plea agreement, when a trial would have acquitted him is displaying incompetence at best, or malicious conflict of interest, at worst.” Motion to Show Cause for Relevancy of Claim at 1-2. “Ineffective assistance of counsel claims ‘should b e brought in collateral proceedings, not on direct appeal. Such claims bro ught on direct appeal are presumptively dismissible, and virtually all will b e dismissed.’” Calderon , 428 F.3d at 931 (quoting United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc)); see also Massaro v. United States , 538 U.S. 500, 504-05 (2003). Accordingly, even if we could identify a specific i neffectiveness claim alleged by2 To the extent Sanchez-Valdez is arguing that his co unsel in the Adams

County case was ineffective, we do not address thatissue either, as this is not the proper forum or proceeding in which to make such a claim. -10- Sanchez-Valdez, we would not address it here. 2 Sanchez-Valdez’s other arguments, as stated in his response to his counsel ’s Anders brief, are equally unavailing and present no non-frivolous issue for appeal.

CONCLUSION We have carefully reviewed the record and Sanchez-V aldez’s arguments and can identify no non-frivolous basis for an appe al. We therefore GRANT Sanchez-Valdez’s counsel’s request to withdraw and we DISMISS this appeal. ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge