                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                                 July 15, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                 Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No.  08-2270
 v.                                           (D.C. No.  1:06-CR-1975-BB-1)
                                                         (D.N.M.)
 SONIA OSUNA,

          Defendant-Appellant. 


                                ORDER AND JUDGMENT *


Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges. 


      Sonia Osuna pled guilty to one count of conspiracy to possess with intent to

distribute more than 500 grams of methamphetamine, in violation of 21 U.S.C.

§ 846, and was sentenced to 84 months’ imprisonment followed by 4 years of

unsupervised release.  Ms. Osuna now appeals.  Her attorney has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), advising us that he

discerns no colorable basis for the appeal, and seeking leave to withdraw.  After


      *
       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 ordered submitted without oral argument.  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order and judgment is not binding precedent except under the doctrines of law of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. 
careful review and for the reasons we describe below, we grant the attorney’s

motion to withdraw and dismiss this appeal. 

                                        ***

      A 2006 investigation by the New Mexico State Police Department and the

federal Drug Enforcement Agency implicated Ms. Osuna in a drug conspiracy.  A

coconspirator alleged that he delivered a total of twenty-four pounds of

methamphetamine to Ms. Osuna on several occasions, for which Ms. Osuna paid

him approximately $70,000.  After indictment by the U.S. Attorney and on the

advice of court-appointed counsel, Ms. Osuna agreed to plead guilty to the

conspiracy count, in exchange for which the government agreed to withdraw the

possession count.  The parties jointly recommended a sentence of 84 months in

prison. 

      The offense to which Ms. Osuna pled guilty carried a mandatory minimum

of 10 years in prison.  However, the district court found that Ms. Osuna qualified

for 18 U.S.C. § 3553(f)’s “safety valve” provision, which allows a sentence below

the mandatory minimum for certain kinds of offenders, of which Ms. Osuna is

undisputedly one.  Under the Sentencing Guidelines, Ms. Osuna qualified for a

base offense level of 34, from which the district court subtracted two levels for

material assistance and specific offense characteristics, two levels for minor

participation in the conspiracy, and three levels for acceptance of responsibility,

resulting in a total offense level of 27.  Combined with a criminal history

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category of I, the Guidelines dictated a sentence of 70 to 87 months.  The court

found no reason to depart from the advisory Guidelines range and therefore

adopted the parties’ recommended sentence of 84 months in prison, along with

four years of unsupervised release. 

      Ms. Osuna timely filed a notice of intent to appeal, and her counsel

submitted an Anders brief asking that he be allowed to withdraw and that Ms.

Osuna’s appeal be dismissed.  The Supreme Court’s decision in Anders authorizes

a defendant’s lawyer to seek permission to withdraw from an appeal if, “after a

conscientious examination,” the lawyer finds the appeal “wholly frivolous.”  386

U.S. at 744.  Invoking Anders requires the lawyer to “submit a brief to the client

and the appellate court indicating any potential appealable issues based on the

record.”  United States v. Calderon, 428 F.3d 928, 930 (10th Cir.  2005) (citing

Anders, 386 U.S. at 744).  The client may then submit his own arguments for the

court’s consideration.  Id. We must then “conduct a full examination of the

record to determine whether [the] defendant’s claims are wholly frivolous.”  Id.

If they are, we may grant counsel’s motion to withdraw and dismiss the appeal. 

Id. In this case, we offered Ms. Osuna an opportunity to respond to her counsel’s

assertions, but she filed no response. 

      The Anders brief before us suggests that the only possible issue on appeal

is whether Ms. Osuna’s counsel offered constitutionally ineffective assistance. 

However, except in extraordinary circumstances, claims of ineffective assistance

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of counsel “should be brought in collateral proceedings rather than on direct

appeal from a conviction.”  United States v. Brooks, 438 F.3d 1231, 1242 (10th

Cir.  2006); accord United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 

1995) (en banc) (“[Ineffective assistance] claims brought on direct appeal are

presumptively dismissible, and virtually all will be dismissed.”).  The record

before us offers no indication why we should depart from the general rule in this

case. 

        The Anders brief raises no additional issues, and Ms. Osuna adds none for

us to consider.  Nor has our own review of the record revealed any legitimate

bases for appeal. 

        With respect to the conviction, the defendant entered her plea knowingly,

intelligently, and voluntarily.  See McCarthy v. United States, 394 U.S. 459

(1969).  The record contains no evidence to suggest any deficiency, and neither

Ms. Osuna nor her counsel has challenged the sufficiency of the plea process.  In

fact, Ms. Osuna certified that she reviewed the plea with her attorney and agreed

to its terms.  R. at 14.  We therefore find no colorable basis for appeal on these

grounds. 

        As to the sentence, our review for procedural and substantive

reasonableness, see Gall v. United States, 128 S. Ct.  586, 597 (2007), exposes no

colorable claim of error of either sort.  The district court correctly calculated the

Guidelines range and correctly applied the factors enumerated in 18 U.S.C.

                                         -4-
§ 3553(f) to find that the statutory mandatory minimum sentence did not apply. 

The district court then selected a sentence within the applicable Guidelines range

and to which the parties had stipulated.  We find this sentence substantively

reasonable in light of the evidence.  See United States v. Gillespie, 452 F.3d 1183,

1192 (10th Cir.  2006) (“A sentence that falls within the correctly calculated

Guidelines range is presumptively reasonable.”);  see also Gall, 128 S. Ct.  at 597

(citing Rita v. United States, 127 S. Ct.  2456 (2007)) (approving a circuit court’s

presumption of reasonableness for sentences within the applicable Guidelines

range).  There is no non-frivolous claim that the district court abused its

considerable discretion.  See United States v. Todd, 515 F.3d 1128, 1134-35 (10th

Cir.  2008). 

      After our review of the record, we agree with Ms. Osuna’s lawyer that there

is no colorable basis for appeal.  Accordingly, we grant counsel’s motion to

withdraw and dismiss this appeal. 



                                       ENTERED FOR THE COURT



                                       Neil M. Gorsuch
                                       Circuit Judge




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