*

 This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

May 24, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DUSTIN RAY DENNIS,

Defendant-Appellant.

No. 09-2195

(D.Ct. No. 1:07-CR-01764-MCA-1)

(D. N.M.)

______________________________

ORDER AND JUDGMENT*

Before BARRETT, ANDERSON, and BRORBY, Senior Circuit Judges.

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

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Defendant-Appellant Dustin Ray Dennis pled guilty to one count of felon in

possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1)

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and 924(a)(2). The district court sentenced him to seventy-seven months in

prison and three years supervised release. While Mr. Dennis appeals his

sentence, his attorney has filed an Anders brief and motion to withdraw as

counsel. See Anders v. California, 386 U.S. 738, 744 (1967). For the reasons set

forth hereafter, we grant counsel’s motion to withdraw and dismiss this appeal. 

I. Background

Pursuant to a formal plea agreement, Mr. Dennis pled guilty to one count of

felon in possession of a firearm and ammunition in violation of 18 U.S.C.

§§ 922(g)(1) and 924(a)(2). As part of his plea agreement, Mr. Dennis

acknowledged he understood his constitutional rights and the possible penalties

against him and he entered the agreement voluntarily. He also agreed to waive

his rights and admitted to knowingly possessing a firearm and ammunition on

June 14, 2007. In addition, the record on appeal shows a plea hearing was held

before the district court on May 6, 2009, at which Mr. Dennis appeared and pled

guilty. During the Rule 11 colloquy at his plea hearing, the record shows the

district court questioned him, in part, about his guilty plea and advised him of his

constitutional rights and the charges, penalties, and possible consequences of his

plea. See Fed. R. Crim. P. 11. 

After the district court accepted Mr. Dennis’s guilty plea, a probation

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officer prepared a presentence report calculating his sentence under the applicable

2008 United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”). The

probation officer set his base offense level at twenty, under U.S.S.G.

§ 2K2.1(a)(4)(A), for committing the instant offense subsequent to sustaining one

felony conviction for a crime of violence. She also recommended increasing the

offense level four levels, under U.S.S.G. § 2K2.1(b)(6), because Mr. Dennis used

or possessed the firearm in connection with a drug trafficking offense; i.e., the

firearm and methamphetamine were found in a stolen vehicle driven by Mr.

Dennis. Finally, she reduced the offense level by three levels for acceptance of

responsibility, for a total base offense level of twenty-one. This, together with a

criminal history category of VI, resulted in an advisory sentencing range of

seventy-seven to ninety-six months imprisonment. 

In response to the presentence report, Mr. Dennis filed an objection to the

four-level enhancement for his use or possession of a firearm in connection with a

drug trafficking offense. He also filed a memorandum in support of a concurrent

or partially-concurrent sentence in relation to his undischarged prison sentences

in the State of Colorado. At the sentencing hearing, Mr. Dennis renewed his

objection to the four-level enhancement on grounds authorities did not test the

substance found in the vehicle with the firearm to confirm it was

methamphetamine. In response, the government provided the testimony of a

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deputy marshal at the scene who stated a field test verified the substance found

was methamphetamine; during cross-examination, however, the deputy marshal

acknowledged no further lab test was conducted. Following the deputy marshal’s

testimony, the district court overruled the objection and determined the four-level

enhancement applied. However, it granted Mr. Dennis’s request for a partiallyconcurrent sentence and sentenced him to seventy-seven months imprisonment,

with fifty months to run consecutive to his Colorado cases and the remaining

twenty-seven months to run concurrently with the Colorado cases. In sentencing

Mr. Dennis at the low end of the Guidelines range, the district court stated it had

considered the advisory Guidelines and the sentencing factors under 18 U.S.C.

§ 3553(a). 

After Mr. Dennis filed a timely notice of appeal, his counsel filed an

Anders motion and appeal brief, explaining a conscientious review of the record

revealed no nonfrivolous issues to appeal in this case and moving for an order

permitting withdrawal as counsel. See Anders, 386 U.S. at 744. In support of his

Anders filings, counsel suggests Mr. Dennis knowingly, voluntarily, and

intelligently pled guilty. Counsel also points out the government provided

evidence at the sentencing hearing establishing the substance found together with

the firearm tested positive for methamphetamine, in support of the previously

disputed four-level enhancement. Finally, appellate counsel, who also

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represented Mr. Dennis at the plea and sentencing hearings, suggests a possible

issue for appeal might be based on a claim that he, as trial counsel, inadequately

and ineffectively represented Mr. Dennis. However, counsel notes that a strong

presumption exists his conduct fell within the range of reasonable professional

assistance, and, on review of the record, no per se evidence of ineffective

assistance exists. 

Pursuant to Anders, this court gave Mr. Dennis an opportunity to respond to

his counsel’s Anders brief. See id. Mr. Dennis has not filed any such response. 

The government filed a notice of its intention not to file an answer brief in this

appeal. 

II. Discussion

As required by Anders, we have conducted a full examination of the record

before us. See id. To begin, Mr. Dennis’s appellate counsel raises the possibility

that an ineffective assistance of counsel claim might exist, but provides nothing in

support of his assertion. Regardless of whether such a claim exists, we have long

held ineffective assistance of counsel claims should be brought in collateral

proceedings and not on direct appeal. See United States v. Calderon, 428 F.3d

928, 931 (10th Cir. 2005). Not only has the claim not been adequately developed

in this appeal, but we have held that “‘[e]ven if the record appears to need no

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further development, the claim should still be presented first to the district court

in collateral proceedings ... so the reviewing court can have the benefit of the

district court’s views.’” United States v. Delacruz-Soto, 414 F.3d 1158, 1168

(10th Cir. 2005) (quoting United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir.

1995) (en banc)). As a result, we decline to consider Mr. Dennis’s unsupported

ineffective assistance of counsel claim on direct appeal. 

Turning next to his guilty plea, the record shows Mr. Dennis entered a

formal, written plea agreement acknowledging he understood his rights and the

possible penalties against him and he entered the agreement voluntarily. 

Similarly, his appellate counsel, who also represented Mr. Dennis at trial, asserts

Mr. Dennis knowingly, voluntarily, and intelligently pled guilty, and the record

provides no indication otherwise. Given Mr. Dennis has not responded or

otherwise established that his plea was unknowingly, unvoluntarily, or

unintelligently made, we conclude no nonfrivolous issue exists on appeal to

challenge his conviction.

As to Mr. Dennis’s sentence, we review it for reasonableness as guided by

the factors in 18 U.S.C. § 3553(a). See United States v. Kristl, 437 F.3d 1050,

1053-55 (10th Cir. 2006) (per curiam). Having made such a review, we find no

nonfrivolous basis for challenging the sentence imposed. The record supports the

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district court’s calculation of his Guidelines range, including the application of

U.S.S.G. § 2K2.1(b)(6) for a four-level offense level increase because Mr. Dennis

used or possessed a firearm in connection with a drug trafficking offense. He has

failed on appeal to respond to his counsel’s Anders argument that the evidence in

the record supports such an enhancement or otherwise provide any argument

showing the methamphetamine was improperly tested. As a result, we conclude

the district court properly calculated Mr. Dennis’s sentence with the four-level

enhancement, after which it sentenced him to seventy-seven months

imprisonment; this is at the low end of the advisory Guidelines range and entitled

to a rebuttable presumption of reasonableness. See id. at 1053-55. Mr. Dennis

has failed to rebut this presumption with any nonfrivolous reason warranting a

lower sentence. See id.

III. Conclusion

For these reasons, we GRANT counsel’s motion to withdraw and

DISMISS this appeal. 

Entered by the Court:

WADE BRORBY

United States Circuit Judge

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