* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and 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.

1 After examining the briefs and appellate record, this panel has determined that

oral argument would not materially assist the determination of this appeal. See Fed. R. App. P.

UNITED STATES COURT OF APPEALS

Filed 5/29/96TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

VICTOR MARTINEZ-LOMELI, aka

Victor Martinez-Gutierrez, aka Javier

Lopez-Martinez,

Defendant-Appellant.

Case No. 95-4102

(D.C. 95 -CR-13-S)

(District of Utah)

 

ORDER AND JUDGMENT*

 

Before BRORBY, EBEL, and HENRY, Circuit Judges.

 

Defendant-Appellant Victor Martinez-Lomeli appeals the sentence entered against

him on June 14, 1995, in the United States District Court for the District of Utah,

following his plea of guilty to re-entering the United States after deportation in violation

of 8 U.S.C. § 1326. We exercise jurisdiction pursuant to 18 U.S.C. §1291 and affirm the

sentence imposed by the district court.1
34(f); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

2

Mr. Martinez-Lomeli was sentenced to ninety-four months imprisonment, three

years supervised release, and a fine of $7,500.00. On October 16, 1995, Mr. MartinezLomeli’s counsel, Ms. Deirdre A. Gorman, filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), wherein counsel declared that after a thorough review of the record

there were no meritorious grounds for appeal. Mr. Martinez-Lomeli was given until

November 15, 1995 to respond to the Anders Brief. On November 13, 1995, Mr.

Martinez-Lomeli filed a motion which was construed as a request for an extension of time

to prepare his response and for a copy of the record. This court extended Mr. MartinezLomeli’s deadline until December 6, 1995, but refused to grant his request for the record. 

On December 15, 1995, Mr. Martinez-Lomeli filed a motion entitled “Motion to

Withdraw and Dismiss Appeal Without Prejudice.” As such, the motion to dismiss was

denied, but this motion is now before this court as Mr. Martinez-Lomeli’s response to the

Anders Brief.

Mr. Martinez-Lomeli raises three issues in his response. First, Mr. MartinezLomeli contends that the district court failed to fulfill its obligations under 28 U.S.C.

§994 by sentencing him to ninety-four months in prison. Section 994 charged the

sentencing commission with establishing fair and reasonable sentencing guidelines. Mr.

Martinez-Lomeli’s vague allegation is simply inadequate to overturn his sentence. The

sentencing guidelines are not unconstitutional, see Unites States v. Mistretta, 488 U.S.
2 Likewise, Mr. Martinez-Lomeli’s renewed Motion for Production of the Record is

hereby denied.

3

361, 412 (1989), and Mr. Martinez-Lomeli’s failure to object to the presentence report

when it was presented to the district court constitutes a waiver of the issue on appeal, see

United States v. O’Dell, 965 F.2d 937, 938 (10th Cir. 1992); United States v. Saucedo,

950 F.2d 1508, 1518 (10th Cir. 1991).

Second, Mr. Martinez-Lomeli argues that because he was denied access to the

record, he was not able to adequately prepare a response to the Anders Brief. Mr.

Martinez-Lomeli’s counsel, Ms. Gorman, states in her Anders Brief that she sent Mr.

Martinez-Lomeli “a letter explaining the findings of her conscientious review of the

record and copies of the sentencing transcript.” Aplt’s Br. at 4. Mr. Martinez does not

allege that he failed to receive these documents. This court denied Mr. MartinezLomeli’s request for the record on November 22, 1995. We later announced that his

“Motion to Withdraw and Dismiss Appeal Without Prejudice” was to be construed as his

response to the Anders Brief. These decisions preclude any further direct review of this

issue.2

Third, Mr. Martinez-Lomeli argues that Ms. Gorman provided ineffective

assistance during the course of this appeal by not conferring with him prior to filing her

Anders Brief. He does not claim that Ms. Gorman was ineffective in her representation

of him before the district court. The mere filing of an Anders Brief cannot form the basis

for a claim of ineffective assistance of counsel and has no bearing on the relief being
4

sought by Mr. Martinez-Lomeli on this direct appeal -- relief from the sentence imposed

by the district court.

For the forgoing reasons, we AFFIRM the sentence imposed by the district court.

Entered for the Court

Robert H. Henry

Circuit Judge