United States v. Flores-Garcia

• Court: Court of Appeals for the Tenth Circuit
• Decided: September 24, 2025
• Docket: 25-2029
• Status: Unpublished

Opinion

Appellate Case: 25-2029 Document: 31-1 Date Filed: 09/24/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT September 24, 2025 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 25-2029 v. (D.C. No. 2:24-CR-01853-RB-1) (D. N.M.) CESAR ACASIO FLORES-GARCIA,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT * _________________________________

Before TYMKOVICH, BALDOCK, and FEDERICO, Circuit Judges. _________________________________

Cesar Acasio Flores-Garcia pleaded guilty to one count of reentry of a previously

removed alien. See 8 U.S.C. § 1326(a). The district court sentenced him to 21 months’

confinement and recommended that Immigration and Customs Enforcement initiate

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. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 25-2029 Document: 31-1 Date Filed: 09/24/2025 Page: 2

removal proceedings against him. Following that judgment, Flores-Garcia filed a notice

of appeal that raises one ground for appeal: ineffective assistance of counsel.

Counsel has now moved to withdraw and has filed an Anders brief stating that she

can identify no meritorious grounds for appeal in the record. Because we agree with

counsel, we exercise our jurisdiction under 28 U.S.C. § 1291 and GRANT the motion to

withdraw and DISMISS the appeal.

I. Background

The United States deported Flores-Garcia to Mexico in September 2021. And

several years later, he reentered the United States via Dona Ana County, New Mexico.

On the same day as his reentry, a United States Border Patrol agent stopped Flores-

Garcia and questioned him about his citizenship. Flores-Garcia answered that he was a

Mexican citizen and that he possessed no documents demonstrating his right to enter or

remain in the United States. The agent arrested Flores-Garcia and later discovered

Flores-Garcia’s prior order of removal, which had issued following his conviction for an

aggravated felony. The agent also learned that Flores-Garcia had not obtained the

Attorney General’s permission to reapply for admission. See 8 U.S.C. § 1326(a)(2). The

Border Patrol agent filed a criminal complaint.

The government then filed an information alleging that Flores-Garcia had illegally

reentered the United States after having been deported in violation of 8 U.S.C. § 1326(a).

And the information further alleged that Flores-Garcia was subject to a stiffer penalty

under § 1326(b)(2) because his previous removal was “subsequent to a conviction for

commission of an aggravated felony.” Flores-Garcia waived his right to an indictment 2 Appellate Case: 25-2029 Document: 31-1 Date Filed: 09/24/2025 Page: 3

and preliminary hearing. He then pleaded guilty to the information without a plea

agreement. The sentencing guidelines recommended confinement between 15 and 21

months, and the district court sentenced Flores-Garcia to 21 months’ confinement, in part

because of his several previous convictions for illegal reentry. The court also

recommended that ICE initiate removal proceedings against Flores-Garcia. He did not

object to this sentence, either on procedural or substantive grounds.

Flores-Garcia timely filed a notice of appeal and argued ineffective assistance of

counsel. Flores-Garcia’s counsel has now moved to withdraw as counsel and filed an

Anders brief explaining that no meritorious grounds exist for this appeal.

II. Discussion

Anders entitles an appellant to two reviews of the record for a nonfrivolous ground

for appeal—first by counsel, then by the court. Appointed counsel may ask to withdraw

from representation if he or she “finds his case to be wholly frivolous, after a

conscientious examination of it.” Anders v. California, 386 U.S. 738, 744 (1967). But

first, counsel must submit to the court “a brief referring to anything in the record that

might arguably support the appeal.” Id. And the represented party must be given a

chance to respond to the brief. Id. After counsel has moved to withdraw and filed an

Anders brief, the action shifts to the court. We must conduct a “full examination of all

the proceedings” and decide whether the record reveals any meritorious ground for

3 Appellate Case: 25-2029 Document: 31-1 Date Filed: 09/24/2025 Page: 4

appeal. And if only frivolous grounds exist, then we “may grant counsel’s request to

withdraw and dismiss the appeal.” Id.

Counsel here has fulfilled her obligation under Anders. She has accompanied her

motion to withdraw with a brief that identifies possible grounds for appeal—which

nevertheless remain frivolous—and Flores-Garcia, though receiving notice of the brief,

has failed to respond. The government has disavowed an intent to file a response.

Having conducted a full and careful examination of the record, we find no

meritorious ground for appeal.

Flores-Garcia’s first hurdle is that he did not preserve any issue below. He waived

the indictment and preliminary hearing; he did not object to any ruling by the district

court. Nor did he object to his sentence.

Thus, Flores-Garcia’s appeal rests on one ground: ineffective assistance of

counsel. Counsel explains that this ground is frivolous, and we agree. Flores-Garcia

brings this challenge through a disfavored route: via direct review, not collateral review.

See United States v. Reed, 39 F.4th 1285, 1292 (10th Cir. 2022) (citations omitted).

Ineffective-assistance-of-counsel claims “brought on direct appeal are presumptively

dismissible, and virtually all will be dismissed.” United States v. Galloway, 56 F.3d

1239, 1240 (10th Cir. 1995) (en banc) (citations omitted). So unless Flores-Garcia’s

claim falls within the rare exception for claims “fully developed in the record,” it will be

4 Appellate Case: 25-2029 Document: 31-1 Date Filed: 09/24/2025 Page: 5

dismissed. United States v. Trestyn, 646 F.3d 732, 741 (10th Cir. 2011) (quoting

Galloway, 56 F.3d at 1242).

Flores-Garcia’s claim does not fall within that exception. The record shows no

development of his ineffectiveness claim. He never raised ineffective assistance before

the district court, and the court never considered his claim. See id. (concluding that the

record had not been fully developed because “[t]he district court never had an

opportunity to consider those claims, much less develop a record on the issue”). No

hearing addressed his counsel’s adequacy, and no testimony explained what deficiencies

(if any) rendered his counsel ineffective. The effectiveness of Flores-Garcia’s counsel

simply goes unmentioned in the record. And without even a mention of the challenge in

the record—let alone a hearing or testimony—we are left with a record “incomplete” and

“inadequate” for reviewing Flores-Garcia’s ineffective-assistance claim. Massaro v.

United States, 538 U.S. 500, 504-05 (2003).

Flores-Garcia’s ineffective-assistance claim is therefore not appropriate for direct

review, and we find that it offers a frivolous ground for appeal.

III. Conclusion

We have examined the proceedings below and conclude that no nonfrivolous

ground exists that would support Flores-Garcia’s appeal. We therefore grant counsel’s

motion to withdraw and dismiss the appeal.

Entered for the Court

Timothy M. Tymkovich Circuit Judge 5