*

 This order and judgment is not binding precedent except under the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

April 16, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ALONSO GUTIERREZ-VASQUEZ,

Defendant-Appellant.

No. 09-2203

(D.Ct. No. 2:08-CR-02444-BB-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.

After Defendant-Appellant Alonso Gutierrez-Vasquez pled guilty to one

count of unlawful reentry of a previously removed alien subsequent to a felony

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conviction, the district court sentenced him to thirty months imprisonment. 

Although Mr. Gutierrez-Vasquez appeals his conviction and sentence, his attorney

has filed an Anders brief and moved for permission 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. Id.

I. Background

On January 12, 2009, Mr. Gutierrez-Vasquez pled guilty, without entering a

plea agreement, to unlawful reentry in violation of 8 U.S.C. § 1326(a)(1) and (2)

and (b). The record on appeal shows a plea hearing was held before the district

court on January 12, 2009, at which Mr. Gutierrez-Vasquez appeared and pled

guilty. Thereafter, a probation officer prepared a presentence report calculating

Mr. Gutierrez-Vasquez’s sentence under the applicable 2008 United States

Sentencing Guidelines (“U.S.S.G.” or “Guidelines”). The probation officer set

the base offense level at 8 under U.S.S.G. § 2L1.2(a) and added twelve levels

under U.S.S.G. § 2L1.2(b)(1)(B) because Mr. Gutierrez-Vasquez was deported

subsequent to having been convicted for a felony drug trafficking offense for

which the sentence was thirteen months or less. Based on his acceptance of

responsibility, the probation officer included a three-level reduction, for a total

offense level of 17. Because Mr. Gutierrez-Vasquez committed the instant

offense while on probation for his drug trafficking offense and less than two years

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after his release from custody, three points were added to his criminal history

score, resulting in a criminal history category of III. A total offense level of 17,

together with a criminal history category of III, resulted in a Guidelines range of

thirty to thirty-seven months imprisonment. 

Mr. Gutierrez-Vasquez’s counsel objected to the presentence report,

claiming Mr. Gutierrez-Vasquez’s criminal history was over-represented because

his drug trafficking conviction was used to increase his offense level as well as

his criminal history points and category, and therefore, his criminal history

category should be reduced to II. The district court rejected his argument,

sentencing Mr. Gutierrez-Vasquez to thirty months imprisonment, at the low end

of the Guidelines range. 

Following Mr. Gutierrez-Vasquez’s timely pro se notice of appeal, his

appointed counsel filed an Anders appeal brief explaining no meritorious issues

exist on appeal. See Anders, 386 U.S. at 744. Counsel pointed out that in

appealing his sentence, Mr. Gutierrez-Vasquez believes his criminal history was

over-represented and should have been calculated at category II. However, after

careful examination of the relevant law and record on appeal, including the plea

and sentencing hearing transcripts, his counsel asserts no reversible error, legally

nonfrivolous question, or jurisdictional defect exists warranting an appeal. 

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Pursuant to Anders, this court gave Mr. Gutierrez-Vasquez an opportunity to

respond to his counsel’s Anders brief. See 386 U.S. at 744. On February 10,

2010, Mr. Gutierrez-Vasquez filed a response, stating his attorney did not allow

him to speak at the sentencing hearing; did not object to his offense level, which

seemed high; and forced him “to sign the plea” by stating if he did not “he would

do everything possible to see to it that I would get 30 months for a prison

sentence.” Based on his arguments, we assume Mr. Gutierrez-Vasquez is

appealing both his conviction and sentence. 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. Mr. Gutierrez-Vasquez summarily argues, without sufficient

explanation, that his counsel did not allow him to speak at the sentencing hearing,

did not object to his offense level, and forced him “to sign the plea.” These

arguments go to the voluntariness of his plea, ineffective assistance of his

counsel, and the calculation and reasonableness of his sentence. 

To begin, 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). We have further held “‘[s]uch

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claims brought on direct appeal are presumptively dismissible, and virtually all

will be dismissed.’” Id. (quoting United States v. Galloway, 56 F.3d 1239, 1240

(10th Cir. 1995)). As a result, we decline to consider Mr. Gutierrez-Vasquez’s

ineffective assistance of counsel claim on direct appeal. See Massaro v. United

States, 538 U.S. 500, 504 (2003) (holding “in most cases a motion brought under

[28 U.S.C.] § 2255 is preferable to direct appeal for deciding claims of ineffective

assistance”).

As to the voluntariness of his plea, Mr. Gutierrez-Vasquez states his

counsel forced him to sign a plea, but we note that in his case he did not enter a

formal, written plea agreement, leaving us to question the legitimacy of his claim

on appeal. In addition, neither Mr. Gutierrez-Vasquez nor his counsel have

submitted the transcript of his plea hearing for our review or provided any other

information regarding the hearing for us to consider, other than the Plea Minute

Sheet. “When the party asserting an issue fails to provide a record sufficient for

considering that issue, [this] court may decline to consider it.” 10th Cir. R.

10.3(B). Finally, Mr. Gutierrez-Vasquez conclusorily states his counsel made

him sign a plea, without providing us any additional argument or information as

to why he continued to plead guilty while undergoing a Rule 11 colloquy with the

district court, as shown in the Plea Minute Sheet. While we construe his pro se

pleadings liberally, see Haines v. Kerner, 404 U.S. 519, 520 (1972), we have held

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perfunctory or cursory reference to issues, which are unaccompanied by some

effort at developed argument, are inadequate to warrant consideration. See United

States v. Almaraz, 306 F.3d 1031, 1041 (10th Cir. 2002). For these reasons, and

because Mr. Gutierrez-Vasquez’s argument as to the voluntariness of his plea is

related to his ineffective assistance of counsel claim, we decline to address it,

leaving such an argument for consideration under 28 U.S.C. § 2255. 

Finally, we turn to Mr. Gutierrez-Vasquez’s sentencing argument in which

he suggests his offense level was too high and his criminal history category was

over-represented. We review his sentence for reasonableness as guided by the

factors in 18 U.S.C. § 3553(a). See United States v. Kristl, 437 F.3d 1050, 1053

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

nonfrivolous basis for challenging the sentence imposed. In calculating his

sentence, both the probation officer and the district court properly applied the

correct offense level and appropriately used U.S.S.G. § 4A1.1(d) and (e) in

calculating his criminal history category. With respect to the latter, § 4A1.1(d)

provides for adding two criminal history points if, as here, “the defendant

committed the instant offense while under any criminal justice sentence, including

probation ....” U.S.S.G. § 4A1.1(d). Similarly, § 4A1.1(e) provides for adding

two points if the defendant committed the instant offense less than two years after

release from imprisonment, but only one point if, as here, two points were already

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added under subsection (d). Mr. Gutierrez-Vasquez qualified for both of these

increases and, accordingly, three points were added to his criminal history score. 

As we held in United States v. Pech-Aboytes, the Guidelines advise the district

court to increase criminal history points in such instances. See 562 F.3d 1234,

1238-39 (10th Cir. 2009). As a result, we conclude the district court properly

calculated Mr. Gutierrez-Vasquez’s sentence. 

After properly calculating Mr. Gutierrez-Vasquez’s sentence, the district

court sentenced him to thirty months imprisonment, which is at the low end of the

advisory Guidelines range and entitled to a rebuttable presumption of

reasonableness. See Kristl, 437 F.3d at 1053-55. Mr. Gutierrez-Vasquez has not

rebutted this presumption with any nonfrivolous reason warranting a lower

sentence. Id. 

III. Conclusion

For these reasons, no meritorious appellate issue exists for our review on

direct appeal. Accordingly, we GRANT counsel’s motion to withdraw and

DISMISS Mr. Gutierrez-Vasquez’s appeal.

Entered by the Court:

WADE BRORBY

United States Circuit Judge

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