FILED 

United States Court of Appeals 

Tenth Circuit 

UNITED STATES COURT OF APPEALS APR202005 

TENTH CIRCUIT PATRICK FISHER 

Clerk 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

V. 

ORLANDO ZAMARRON-PEREZ, 

also known as Javier Fernandez, also 

known as Enrique Martinez, also 

known as Gerardo Martinez, also 

known as Juan Carlos Perez, 

Defendant-Appellant. 

No. 04-2247 

(D.C. No. CR-04-1033 JB) 

(New Mexico) 

ORDER AND JUDGMENT* 

Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges. 

Orlando Zamarron-Perez pled no contest to one count of reentry of a 

deported alien previously convicted of an aggravated felony in violation of 8 

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

determined unanimously that oral argument would not materially 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 oral 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judgment is not binding precedent, except under the doctrines of law of the case, 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 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. 

Appellate Case: 04-2247 Document: 010110593122 Date Filed: 04/20/2005 Page: 1
U.S.C. §§ 1326(a) and (b)(2). Based on a total offense level of thirteen and a 

criminal history category of VI, Mr. Zamarron-Perez's guidelines sentence range 

was calculated at thirty-three to forty-one months incarceration. The district court 

sentenced him at the top of that range to a forty-one month term. Mr. ZamarronPerez's counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 

( 1967), and moved for leave to withdraw as counsel. We grant counsel's motion 

to withdraw and dismiss the appeal. 

Anders holds that if counsel finds a case to be wholly frivolous after 

conscientious examination, he may so advise the court and request permission to 

withdraw. Counsel must also submit to both the court 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 

the appeal. Id. at 744. Pursuant to Anders, counsel provided Mr. Zamarron-Perez 

with a copy of his appellate brief and Mr. Zamarron-Perez filed a prose reply 

brief raising two issues. 

Mr. Zamarron-Perez first complains that he was denied his Sixth 

Amendment right to effective assistance of counsel. We have held that 

ineffective assistance of trial counsel claims should be brought in collateral 

-2-

Appellate Case: 04-2247 Document: 010110593122 Date Filed: 04/20/2005 Page: 2
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. Mr. Zamarron-Perez has 

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. Id. 

Mr. Zamarron-Perez also contends his sentence was imposed in violation of 

United States v. Booker, 125 S. Ct. 738 (2005). In Booker, the Supreme Court 

applied the rule it expressed in Apprendi v. New Jersey, 530 U.S. 466 (2000), to 

the Federal Sentencing Guidelines, holding that the Sixth Amendment 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 verdict must be admitted by the defendant or proved to a jury 

beyond a reasonable doubt." 125 S. Ct. at 756. To remedy the guidelines' Sixth 

Amendment problem, the Court severed and excised 18 U.S.C. § 3553(b)(l), 

which required mandatory application of the guidelines. Id. at 756-57, 765. As a 

result, the guidelines are now advisory in all cases. Id. at 757. In addition, the 

Court expressly stated that its "remedial interpretation of the Sentencing Act" 

must be applied "to all cases on direct review." Id. at 769. In determining Mr. 

Zamarron-Perez's sentence, the district court did not rely upon judge-found facts, 

but it did apply the then-mandatory federal sentencing guidelines. We must 

-3-

Appellate Case: 04-2247 Document: 010110593122 Date Filed: 04/20/2005 Page: 3
therefore evaluate Mr. Zamarron-Perez's sentence in light of Booker. 

Because Mr. Zamarron-Perez did not raise his non-constitutional Booker 

claim in district court, we review for plain error. FED R. CRIM. P. 52(b ); United 

States v. Gonzalez-Huerta, No. 04-2045, 2005 WL 807008, at *3 (10th Cir. Apr. 

8, 2005) (en bane). To establish plain error, Mr. Zamarron-Perez must 

demonstrate there was (I) error (2) that was plain and (3) affected his substantial 

rights. United States v. Cotton, 535 U.S. 625, 631 (2002); Gonzalez-Huerta, 2005 

WL 807008, at *3. If he satisfies his burden of establishing the first three prongs 

of the plain error test, we may exercise our discretion to correct the error if it 

"seriously affect[ ed] the fairness, integrity or public reputation of judicial 

proceedings." Johnson v. United States, 520 U.S. 461, 469-70 (1997) (quoting 

United States v. Olano, 507 U.S. 725, 736 (1993)); Gonzalez-Huerta, 2005 WL 

807008, at *3. 

Mr. Zamarron-Perez easily satisfies the first two prongs of plain error 

analysis. First, the district court, albeit unknowingly, committed error by 

applying the guidelines as mandatory in sentencing Mr. Zamarron-Perez. See 

Gonzalez-Huerta, 2005 WL 807008, at *3. Second, the error is now "plain" or 

"obvious." Johnson, 520 U.S. at 468 ("where the law at the time of trial [or 

sentencing] was settled and clearly contrary to the law at the time of appeal - it is 

enough that an error be 'plain' at the time of appellate consideration"). We need 

-4-

Appellate Case: 04-2247 Document: 010110593122 Date Filed: 04/20/2005 Page: 4
not decide whether Mr. Zamarron-Perez can satisfy his burden under the third 

prong of plain error analysis "because even assuming [his] substantial rights were 

affected, the error did not seriously affect the fairness, integrity, or public 

reputation of judicial proceedings." Cotton, 535 U.S. at 632-33; Johnson, 520 

U.S. at 469-70; Gonzalez-Huerta, 2005 WL 807008, at *6 ("We need not 

determine whether [the defendant] can satisfy this burden because even if he were 

to meet the third prong, he must also satisfy the fourth prong to obtain relief."). 

This court "will not notice a non-constitutional error, such as the one in the 

case before us, unless it is both 'particularly egregious' and our failure to notice 

the error would result in a 'miscarriage of justice."' Gonzalez-Huerta, 2005 WL 

807008, at *7 ( quoting United States v. Gilkey, 118 F .3d 702, 704 (10th Cir. 

1997)). After the district court determined that Mr. Zamarron-Perez's applicable 

guidelines range was thirty-three to forty-one months, it opted to sentence Mr. 

Zamarron-Perez to a forty-one month term of imprisonment. In other words, the 

court exercised its discretion and in doing so sentenced Mr. Zamarron-Perez to 

serve the maximum term of imprisonment it could lawfully impose. As a result, 

any argument that the district court might have sentenced Mr. Zamarron-Perez 

differently had it understood it had discretion to do so is simply unpersuasive. 

Given "there is no record evidence to support a lower sentence, we cannot 

conclude that [Mr. Zamarron-Perez's] sentence is particularly egregious or a 

-5-

Appellate Case: 04-2247 Document: 010110593122 Date Filed: 04/20/2005 Page: 5
miscarriage of justice." Id. at *8. 

Because Mr. Zamarron-Perez has no meritorious grounds for appeal, we 

GRANT counsel's request to withdraw and we DISMISS the appeal. 

ENTERED FOR THE COURT 

Stephanie K. Seymour 

Circuit Judge 

-6-

Appellate Case: 04-2247 Document: 010110593122 Date Filed: 04/20/2005 Page: 6