FILED 

United States Court of Appeals 

Tenth Circuit 

UNITED STATES COURT OF APPEALS APR 19 2005 

TENTH CIRCUIT PATRICK FISHER 

Clerk 

UNITED ST A TES OF AMERICA, 

Plain ti ff-Appellee, 

V. 

LEROY HA YNES, 

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 loss 

*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 I 0th 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judgment is not binding precedent, except under the doctrines of law of the case, 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. 

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amount of $79,800. Based on a total offense level of twelve 1 and a criminal 

history category of I, Mr. Haynes' guidelines sentence 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. § 1 A 1.1, imposed one 

half of his sentence to be served in the form of prison confinement and the 

remainder of his term to be served via in-home detention, followed by three years 

of supervised release. Mr. Haynes' counsel filed a brief pursuant to Anders v. 

California, 386 U.S. 738 (1967), and moved for leave to withdraw as counsel. 

For the reasons set out below, we deny counsel's motion to withdraw and remand 

the case to the district court for resentencing. 

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 

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Mr. Haynes' conviction resulted in a base offense level of six. Pursuant to 

the jury's finding beyond a reasonable doubt that Mr. Haynes' actions involved an 

intended loss amount of $79,800, the district court increased his base offense 

level by six levels, resulting in a total offense level of twelve. Rec., vol. VI, at 

28. 

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the appeal. Id. at 744. Pursuant to Anders, counsel has provided Mr. Haynes with 

a copy of his appellate brief and Mr. Haynes was given an opportunity to respond, 

which he did by filing a prose reply brief raising two issues. 

Mr. Haynes first complains that he was denied his Sixth Amendment right 

to effective assistance of counsel. This court has repeatedly stated that 

ineffective assistance of trial counsel claims should 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 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. Galloway, 56 F.3d at 1240. 

Mr. Haynes next contends that his sentence was imposed 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 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 

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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 severed and excised 18 U.S.C. § 

3553(b)(l), invalidating their mandatory application. 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. 

Haynes' sentence, the district court did not rely upon judge-found facts, but it did 

apply the then-mandatory federal sentencing guidelines. 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 Procedure 52(a), "[a]ny error, 

defect, irregularity, or variance that does not affect substantial rights must be 

disregarded" on harmless error review. FED. R. CRIM. P. 52(a). In the instant 

case, the district court sentenced Mr. Haynes under sentencing guidelines it 

viewed as mandatory. The court also exercised its discretion to sentence Mr. 

Haynes at the bottom of his applicable guidelines range. We have held that where 

non-constitutional Booker error was properly preserved and the defendant was 

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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 guidelines range, to say that 

the district court would have imposed the same sentence given the new 

legal landscape ( even after consulting the Sentencing Guidelines in an 

advisory capacity) places us in the zone of speculation and conjecture--we 

simply do not know what the district court would have done after hearing 

from the parties. Though an appellate court may judge whether a district 

court exercised its discretion (and whether it abused that discretion), it 

cannot exercise the district court's discretion. 

Labastida-Segura, 396 F.3d at 1143 (citation omitted). Similarly here, we cannot 

say that Mr. Haynes' non-constitutional Booker error did not affect the district 

court's selection of the sentence imposed. As a result, 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 

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