F ILED United States Court of

Appeals Tenth Circuit 

### Octo ber 9 , 2 0 1 9 Elisabeth A. Shum aker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintif f – Appellee,

v. FREDIS TOMAS CHICAS-PEREIRA, Def endant – Appellant. No. 19-2019 ( D.C. No. 2:18-CR-00957-DP-1)

(D. N.M.)

ORDER AND JUDGMENT *

Bef ore MATHESON , McKAY , and BACHARACH , Circuit Judges.

Af ter exam ining def

e nse counsel’s Anders brief and the appellate record, this panel has determ ined unanim ously that oral argum ent would not m aterially assist in the determ ination of

this appeal. S

e e Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is theref

o re ordered subm itted without oral argum ent. Following a f

ull advisem ent of

his rights, Def

endant Fredis Tom a s Chicas-Pereira pled guilty

to one count of

illegally reentering the country

af ter being rem oved f

ollowing an aggravated-f

e lony conviction, in violation of 8 U.S.C. § 1326(a)(1) and (b)(2). At

* This order and judgm ent is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It m ay be cited, however, f

or its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.sentencing, the district court calculated an advisory guideline range of 51 to 63 m onths of im p risonm ent. Based on Def endant’s lengthy

crim inal history , including a previous illegal reentry

of f ense f or which he had received a 41-m onth sentence, the district court concluded that a within-guideline sentence of 6 0 m onths was suf f icient but not longer than necessary

to com ply with the purposes set f

o rth in 18 U.S.C. § 3553(a). Def endant f iled a tim ely notice of

appeal. His appellate counsel subsequently f iled a brief asserting that there are no non-f r ivolous issues to appeal and seeking to withdraw as counsel pursuant to Anders v. California , 386 U.S. 738 (1967). Def endant subm itted a pro se response in which he argued that there are non-f rivolous appellate argum ents that could be raised regarding the district court’s sentencing decision and counsel’s investigation of the original deportation order. W h en appellate counsel f iles an Anders brief

, we conduct “a f

ull exam ination of all the proceedings[ ] to decide whether the case is wholly f rivolous.” Id. at 744. Af ter reviewing the entire record in this case, we see no non-f r ivolous issue that counsel could raise on appeal. First, we see no legitim ate basis f or Def endant to challenge his plea of guilty , which was entered af

ter a f ull advisem ent of

rights. See Fed. R. Crim . P. 11(b). Although Def

endant could potentially

attem p t to challenge the validity of the group-plea process in which he and several other illegal-reentry def endants received their advisem ents together, he did not raise this argum e nt in the district court proceedings, and

-2-we held in a case involving a very sim ilar group-plea hearing that “[ a]ny error was not plain, given the dearth of applicable Suprem e Court and Tenth Circuit case law” on this issue. U nited States v. Mejia-Rios , 741 F. App’x 580, 586 n.7 (10th Cir. 2018). Thus, we are not persuaded that Def endant could raise a non-f rivolous argum ent f

or plain error here. Def

endant contends that his attorney could raise a non-f

rivolous appellate argum ent that trial counsel was inef f ective in f

ailing to investigate possible challenges to the original deportation order. However, “[ t]he rule in this circuit . . . is that claim s of constitutionally inef

f ective counsel should be brought on collateral review,” and this case does not present one of

those “rare [ inef

f ective-assistance] claim s which are f ully developed in the record” and thus could be brought on direct appeal instead. United States v. Galloway , 56 F.3d 1239, 1242 (10th Cir. 1995) (en banc). W e theref ore conclude that this potential argum ent likewise does not present a non-f rivolous claim

f or relief in this appeal. Finally , we see no basis in the record f or counsel to raise a non-f rivolous challenge to the district court’s sentencing decision. Def e ndant did not object to the district court’s calculation of

the advisory

sentencing guideline range below, and we see no error, m uch less plain error, in the district court’s calculation of this range or explanation of t he sentencing decision. See United States v. Taylor , 843 F.3d 1215, 1219 (10th Cir. 2016); United States v. Romero , 491 F.3d 1173, 1178 (10th Cir. 2007). Contrary to Def endant’s

-3-assertions in his pro se response, we see no non-f rivolous argum e nts that could be raised regarding the potential ef f ect of the recent First Step Act or the earlier Fair Sentencing Act of 2010 on the district court’s sentencing calculation: Def e ndant has not cited, nor have we f ound, any provisions of

the cited Acts that would af f ect the district court’s calculation of

the guideline range f

or this illegal-reentry

of f ense. As f

or the substantive reasonableness of

the 60-m onth sentence, the record reveals no non-f rivolous argum ents that could be raised to rebut the presum ption of reasonableness attached to Def endant’s within-guideline sentence. S ee United States v. McComb , 519 F.3d 1049, 1053 (10th Cir. 2007). W e accordingly GRANT counsel’s m otion to withdraw and DISMISS the appeal. Def endant’s m otion f

or leave to f

ile his pro se response out-of -tim e is GRANTED

. Entered f or the Court

Monroe G. McKay Circuit Judge

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