* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore submitted without o ral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel. The court ge nerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment 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 

### APR 19 2005 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. LEROY HAYNES, Defendant-Appellant. No. 04-1337 (D.C. No. 03-CR-561-RB) (Colorado)



### ORDER AND JUDGMENT *

Before SEYMOUR , HARTZ , and McCONNELL , Circuit Judges.
Leroy Haynes was found guilty of one count of bank fraud and aiding and abetting the same in violation of 18 U.S.C. § 1344 and § 2. As determined by the jury beyond a reasonable doubt, Mr. Haynes’ offense involved an intended loss1 Mr. Haynes’ conviction resulted in a base offense l evel of six. Pursuant to

the jury’s finding beyond a reasonable doubt that M r. Haynes’ actions involved an intended loss amount of $79,800, the district courtincreased his base offense level by six levels, resulting in a total offense l evel of twelve. Rec., vol. VI, at 28. -2- amount of $79,800. Based on a total offense level of twelve 1 and a criminal history category of I, Mr. Haynes’ guidelines sente nce range was ten to sixteen months incarceration. The district court sentenced Mr. Haynes at the bottom of that range to a ten-month term and, pursuant to U.S .S.G. § 1A1.1, imposed one half of his sentence to be served in the form of pr ison confinement and the remainder of his term to be served via in-home dete ntion, followed by three years of supervised release. Mr. Haynes’ counsel filed abrief pursuant to Anders v. California , 386 U.S. 738 (1967), and moved for leave to withd raw as counsel. For the reasons set out below, we deny counsel’s mo tion to withdraw and remand the case to the district court for resentencing. Anders holds that if counsel finds a case to be wholly fri volous after conscientious examination, he may so advise the cou rt and request permission to withdraw. Counsel must also submit to both the cou rt and his client a brief referring to anything in the record arguably supportive of the appeal. The client may then raise any point he chooses, and the court thereafter undertakes a complete examination of all proceedings and decides whether the appeal is in fact frivolous. If it so finds, it may grant counsel’s request to withdraw and dismiss-3-

the appeal. Id . at 744. Pursuant to Anders , counsel has provided Mr. Haynes with a copy of his appellate brief and Mr. Haynes was gi ven an opportunity to respond, which he did by filing a pro se reply brief raising two issues. Mr. Haynes first complains that he was denied his S ixth Amendment right to effective assistance of counsel. This court has repeatedly stated that ineffective assistance of trial counsel claims shou ld be brought in collateral proceedings, not on direct appeal. United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995). “Such claims brought on direct appeal are presumptively dismissible, and virtually all will be dismissed.” Id .; see also United States v. Coleman , 9 F.3d 1480, 1487 (10th Cir. 1993). Mr. Haynes h as failed to show that his claim qualifies as one of those “rare instances ” in which we should hear an ineffective counsel challenge on direct review. Galloway , 56 F.3d at 1240. Mr. Haynes next contends that his sentence was impo sed in violation of Blakely v. Washington , 124 S. Ct. 2531 (2004). In Blakely , the Supreme Court applied the rule it expressed in Apprendi v. New Jersey , 530 U.S. 466 (2000), to Washington state’s determinate sentencing regime. See 124 S. Ct. at 2536. Recently, the Court applied the rule of Apprendi and Blakely to the Federal Sentencing Guidelines, holding that the Sixth Amend ment requires “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury-4-

verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” United States v. Booker , 125 S. Ct. 738, 756 (2005). To remedy the guidelines’ Sixth Amendment problem, the Court seve red and excised 18 U.S.C. § 3553(b)(1), invalidating their mandatory applicatio n. Id . at 756-57, 765. As a result, the guidelines are now advisory in all case s. Id . at 757. In addition, the Court expressly stated that its “remedial interpret ation of the Sentencing Act” must be applied “to all cases on direct review.” Id . at 769. In determining Mr. Haynes’ sentence, the district court did not rely upon judge-found facts, but it did apply the then-mandatory federal sentencing guideli nes. We must therefore evaluate Mr. Haynes’ sentence in light of the Booker remedy. Because Mr. Haynes raised Blakely in the district court, he properly preserved his non-constitutional Booker claim and we review it for harmless

error. See United States v. Labastida-Segura , 396 F.3d 1140, 1142 (10th Cir. 2005). According to Federal Rule of Criminal Proc edure 52(a), “[a]ny error, defect, irregularity, or variance that does not aff ect substantial rights must be disregarded” on harmless error review. F ED
. R. C RIM
. P. 52(a). In the instant case, the district court sentenced Mr. Haynes undersentencing guidelines it viewed as mandatory. The court also exercised its discretion to sentence Mr. Haynes at the bottom of his applicable guidelines r ange. We have held that where non-constitutional Booker error was properly preserved and the defendant was-5-

sentenced at the bottom of his guidelines range, we cannot conclude the error was harmless: Here, where it was already at the bottom of the gui delines range, to say that the district court would have imposed the same sent ence given the new legal landscape (even after consulting the Sentenci ng Guidelines in an advisory capacity) places us in the zone of speculation and conjecture--we simply do not know what the district court would ha ve done after hearing from the parties. Though an appellate court may jud ge whether a district court exercised its discretion (and whether it abus ed that discretion), it cannot exercise the district court’s discretion. Labastida-Segura , 396 F.3d at 1143 (citation omitted). Similarly h ere, we cannot say that Mr. Haynes’ non-constitutional Booker error did not affect the district court's selection of the sentence imposed. As a re sult, we DENY counsel’s motion to withdraw and REMAND the case to the district court for resentencing consistent with this opinion.
ENTERED FOR THE COURT Stephanie K. Seymour Circuit Judge