United States v. Banuelos-Barraza

Opinion

FILED United States Court of Appeals Tenth Circuit

April 7, 2011 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 10-4125 v. (D.C. No. 2:09-CR-108-TC-2) (D. Utah) EDUARDO BANUELOS-BARRAZA,

Defendant-Appellant.

ORDER

Before LUCERO, GORSUCH, and MATHESON, Circuit Judges.

The order and judgment filed March 31, 2011, has been amended. The

amended order and judgment, filed nunc pro tunc to the original filing date, is

attached to this order.

ENTERED FOR THE COURT

Elisabeth A. Shumaker, Clerk FILED United States Court of Appeals Tenth Circuit

March 31, 2011 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT

Plaintiff-Appellee, No. 10-4125 v. (D.C. No. 2:09-CR-108-TC-2) (D. Utah) EDUARDO BANUELOS-BARRAZA,

ORDER AND JUDGMENT *

Eduardo Banuelos-Barraza pleaded guilty to one count of possession of

cocaine with intent to distribute and one count of reentering as a previously

removed alien. The district court then sentenced Mr. Banuelos-Barraza to 46

months in prison followed by 60 months supervised release. Trial counsel

subsequently withdrew from the case, but filed a notice of appeal before she did. 1

* 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 This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel.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. 1 Mr. Banuelos-Barraza’s appellate counsel points out that the notice of (continued...) Mr. Banuelos-Barraza’s newly appointed appellate counsel has now filed a brief

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

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

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. And 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 her Anders brief, Mr. Banuelos-Barraza’s current counsel identifies three

potential points of appeal in this case: the district court’s decision denying Mr.

Banuelos-Barraza’s motion to suppress; the reasonableness of the sentence the

1 (...continued) appeal was not timely filed, coming one day after the 14 day period afforded by Fed. R. App. P. Rule 4(b)(1)(A). This rule is not jurisdictional, however, see United States v. Garduno, 506 F.3d 1287, 1290-91 (10th Cir. 2007), and we have declined to enforce it sua sponte in circumstances similar to these, see United States v. Mitchell, 518 F.3d 740, 750-51 (10th Cir. 2008). Mr. Banuelos-Barraza’s motion to modify the record on appeal is mooted by this ruling.

-2- district court chose; and the effectiveness (or ineffectiveness) of trial counsel.

All three lines of attack, counsel argues, would be pointless, lacking any merit.

Despite being afforded opportunity to do so, Mr. Banuelos-Barraza has not

submitted any materials disputing this analysis or identifying any other additional

arguments he would like to pursue. Similarly, the government has indicated by

letter its intent not to respond to the Anders brief. After our own independent

review of the record, we agree with Mr. Banuelos-Barraza’s counsel that any

appeal in this case would be fruitless.

First, the Anders brief points out that Mr. Banuelos-Barraza cannot appeal

the denial of his motion to suppress. This is because he entered an unconditional

plea of guilty, and thereby waived all non-jurisdictional defenses to his

conviction. We are constrained by precedent to agree. See United States v.

Salazar, 323 F.3d 852, 856 (10th Cir. 2003).

Second, the Anders brief raises the possibility that Mr. Banuelos-Barraza

might challenge his sentence. But our review of Mr. Banuelos-Barraza’s

sentence, which is at the bottom of the advisory guidelines range, confirms

counsel’s assessment that it is neither procedurally nor substantively

unreasonable. We therefore agree with Mr. Banuelos-Barraza’s counsel that this

avenue of appeal would be unavailing as well.

Third, the Anders brief raises the possibility that Mr. Banuelos-Barraza

might argue his trial counsel was ineffective. The brief correctly notes, however,

-3- that except in extraordinary circumstances claims of ineffective assistance of

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

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

2006). And, like counsel, we discern no reason why we would depart from that

rule in this case.

Counsel’s motion to withdraw is granted and this appeal is dismissed.

Neil M. Gorsuch Circuit Judge

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