United States v. Garcia-Villapando

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 20, 1999
• Docket: 98-1336
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS APR 20 1999

TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 98-1336 v. (D.C. No. 98-CR-143-ALL) (Colorado) NICOLAS GARCIA-VILLAPANDO,

Defendant-Appellant.

ORDER AND JUDGMENT *

Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges.

After examining the briefs and 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); 10th Cir. R. 34.1(G). The cause 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel.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. Nicolas Garcia-Villapando appeals from the sentence imposed after his plea

of guilty to unlawfully reentering the United States after deportation for an

aggravated felony in violation of 8 U.S.C. §§ 1326(a) and (b)(2). Counsel

appointed to represent defendant on appeal filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967). For the reasons set out below, we dismiss the

appeal.

The facts supporting defendant’s guilty plea are set forth in the Plea

Agreement and Statement of Facts Relevant to Sentencing. The plea agreement

anticipated a sentencing guideline range of 77 to 96 months. Defendant’s trial

counsel filed a Motion for Downward Departure, arguing that the district court

should exercise its discretion to depart downward under the authority of United

States v. Lipman, 133 F.3d 726 (9th Cir. 1998), based on defendants’s “cultural

assimilation” into the United States. The district court recognized it had

discretion to depart downward but declined to do so, sentencing defendant to 77

months imprisonment.

Trial counsel filed a notice of appeal on defendant’s behalf and moved to

withdraw. New counsel was appointed to represent defendant on appeal. Anders

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

examination, he should so advise the court and request permission to withdraw.

Counsel must in addition submit to both the court and his client a brief referring

-2- to anything in the record arguably supportive of the appeal. The client may then

raise any points he chooses, and the appellate 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. See id. at 744.

In his Anders brief, counsel raises three possible points: the district court’s

refusal to depart downward; ineffective assistance of counsel; and defendant’s

argument that prior INS deportation procedures were not constitutional.

Defendant was notified of his right to file a pro se brief, and he has not chosen to

do so. Accordingly, we turn to an examination of the proceedings below to

determine if the appeal is wholly frivolous.

The district court refused to grant defendant a downward departure. In so

doing, the court clearly recognized that it had the discretion to depart downward

but declined to do so. Because the court acknowledged its authority to grant such

a departure, we have no jurisdiction to review its decision refusing to exercise

that authority. See United States v. Castillo, 140 F.3d 874, 887-89 (10th Cir.

1998); United States v. Rodriguez, 30 F.3d 1318, 1319 (10th Cir. 1994).

We have carefully examined the record to ascertain whether any other

ground exists to support a challenge to defendant’s sentence. We find nothing in

the record to indicate that the sentence imposed was in violation of the law or the

-3- result of a misapplication of the guidelines. Accordingly, we are without

jurisdiction to consider such a challenge. See United States v. Sanchez, 146 F.3d

796, 796-97 (10th Cir. 1998); 18 U.S.C. § 3742(a).

To the extent that Mr. Garcia-Villapando’s notice of appeal can be viewed

as an assertion that his counsel was ineffective, the issue must be raised

collaterally rather than on direct appeal. See United States v. Galloway, 56 F.3d

1239, 1240 (10th Cir. 1995) (en banc). We pointed out in Galloway that such

claims brought on direct appeal are presumptively dismissible because most

ineffectiveness claims need further record development. Id. Although we

recognized that in rare instances the merits of an ineffectiveness claim may be

reviewed on direct appeal because the claim needs no further development, id.,

that rare exception is clearly not applicable here. To the extent defendant wishes

to raise ineffective assistance of counsel, therefore, the claim must be pursued in

a collateral proceeding.

Defendant asserts in his docketing statement that the INS deportation

proceedings did not pass constitutional muster, thereby making the actual charges

against him invalid. He did not raise this issue in the trial court. Counsel has

reviewed the record for any support for defendant’s stated issue and has been

unable to find anything to indicate to what defendant may be referring.

Moreover, “[w]e will not consider any argument raised for the first time on

-4- appeal.” See United States v. Mendoza-Lopez, 7 F.3d 1483, 1485 n.2 (10th Cir.

1993).

After review of the entire proceedings, we conclude that the record

establishes no non-frivolous ground for appeal. The appeal is therefore

DISMISSED and counsel’s motion to withdraw is GRANTED.

ENTERED FOR THE COURT

Stephanie K. Seymour Chief Judge

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