United States v. Lopez-Vasquez

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 21, 2006
• Docket: 05-1532
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS August 21, 2006 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee,

v. No. 05-1532 (D . Colo.) ERNESTO LOPEZ-VA SQUEZ, (D.Ct. No. 05-CR-221-LTB)

Defendant-Appellant.

OR D ER AND JUDGM ENT *

Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior 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. 34.1.9(G). The case is

therefore ordered submitted without oral argument.

Appellant Ernesto Lopez-Vasquez, a federal prisoner represented by

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel.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. counsel, pled guilty to one count of reentry of a deported alien previously

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

The district court sentenced M r. Lopez-Vasquez to forty-six months imprisonment

followed by three years supervised release. M r. Lopez-Vasquez appeals the

district court’s sentence; his attorney has filed an Anders brief and motion to

withdraw as counsel. See Anders v. California, 386 U.S. 738, 744 (1967).

Exercising our jurisdiction under 28 U.S.C. § 1291, we grant counsel's request to

withdraw and dismiss M r. Lopez-V asquez’s appeal.

M r. Lopez-Vasquez received a one-count indictment for unlawful reentry of

a deported alien previously convicted of an aggravated felony, in violation of 8

U.S.C. § 1326(a) and (b)(2). He entered into a plea agreement in which he

admitted his guilt in exchange for the government’s agreement to recommend

both a one-level reduction for acceptance of responsibility, pursuant to United

States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) § 3E1.1(b), and a

sentence at the bottom of the applicable advisory Guidelines range. At M r.

Lopez-Vasquez’s Rule 11 plea hearing, the district court advised him of: 1) the

possible penalties he faced for the offense to which he pled guilty; 2) his rights to

a jury trial and representation by counsel; 3) the law of the presumption of

innocence; 4) the government's burden to prove his guilt beyond a reasonable

doubt; and 5) his rights to confront witnesses, to be protected from compelled

-2- self-incrimination, and to compel the attendance of w itnesses. The district court

also advised him that if he pled guilty, he had the right to appeal the sentencing

decision but not his conviction. M r. Lopez-Vasquez indicated he understood his

rights and that by pleading guilty he was giving up those rights.

After M r. Lopez-Vasquez pled guilty, the probation officer prepared a

presentence report in which he calculated M r. Lopez-Vasquez’s sentence,

determining: 1) his base offense level was 8, pursuant to U.S.S.G. § 2L1.2(a); 2)

the base level should be increased sixteen levels to 24, pursuant to U.S.S.G.

§ 2L1.2(b)(1)(A)(ii), because he had been deported following conviction of an

aggravated felony; i.e., robbery with the use of a deadly weapon, which

constituted a crime of violence; 3) he should receive a three-level reduction for

acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1; and 4) the total

offense level should be 21. Based on M r. Lopez-Vasquez’s prior criminal history,

the probation officer calculated his criminal history level at III, resulting in a

Guidelines range of forty-six to fifty-seven months imprisonment. Neither the

government nor M r. Lopez-Vasquez filed an objection to the presentence report;

however, M r. Lopez-Vasquez requested a downward departure because he was

raised and has family in the United States; his prior violent crime was over

twenty-five years ago; and a disparity of sentence would result because some

courts use “fast track” sentencing, while others do not. Based on these

-3- arguments, the probation officer recommended a sentence below the Guidelines

range at thirty months imprisonment.

At sentencing, M r. Lopez-Vasquez’s counsel again argued for a sentence

below the Guidelines range on grounds: 1) M r. Lopez-Vasquez’s prior

aggravated felony for robbery with a deadly weapon occurred over twenty-five

years ago, in 1979; 2) the fast track sentencing program causes disparity in

sentencing; and 3) cultural assimilation issues exist, given he came to this country

when he was fourteen and is now middle-aged, has family (including a son) in the

United States, and has no family in M exico. The district court considered the

parties’ arguments, the defendant’s statement at sentencing, the principles set

forth in United States v. Booker, 1 including the use of the Guidelines as advisory,

the sentencing factors in 18 U.S.C. § 3553(a)(2), and the findings of fact in the

presentence report, to w hich neither party objected, and then sentenced M r.

Lopez-V asquez at the low end of the applicable G uidelines range to forty-six

months imprisonment. In so doing, the district court recognized the cultural

assimilation difficulties raised by M r. Lopez-Vasquez, but explained it was

imposing a sentence within the Guidelines range based, in part, on M r. Lopez-

Vasquez’s multiple illegal reentries and multiple and continuous criminal

offenses, which started in 1979, at the age of twenty-one, with robbery with the

1 543 U.S. 220 (2005).

-4- use of a deadly weapon, and continued with the offenses of statutory rape,

unlawful communication with a prisoner, failure to register as a drug offender,

grand theft, possession of stolen property, use and under the influence of a

controlled substance, petty theft, and most recently, in 2004, possession of heroin.

The district court found M r. Lopez-Vasquez to be a recidivist from which the

public needs protection, rejected the fast track program arguments as grounds

showing disparity of sentencing; and determined the advisory Guidelines range

met all of the statutory factors to be considered. It also explicitly rejected the

probation officer’s recommendation of a thirty-month sentence, stating it did not

satisfy its analysis of a sentence under § 3553(a).

After M r. Lopez-Vasquez filed a timely notice of appeal, his counsel filed

an Anders appeal brief, alleging no meritorious appellate issues exist and

requesting an order permitting him to withdraw as counsel. See Anders, 386 U.S.

at 744. Specifically, counsel points out M r. Lopez-Vasquez knowingly and

voluntarily entered his guilty plea, and the district court applied the appropriate

factors under 18 U.S.C. § 3553, giving a reasoned analysis for each factor and

why it did not warrant a reduction below the applicable advisory Guidelines

range. Pursuant to Anders, this court gave M r. Lopez-Vasquez an opportunity to

raise points in response to his attorney’s Anders brief. Id. M r. Lopez-Vasquez

responded, stating his counsel was ineffective because he told M r. Lopez-Vasquez

-5- if he pled guilty he would appeal an enhanced sentence and that because of his

counsel’s advice, he pled guilty.

W e begin with a discussion of the requirements for counsel filing an Anders

request. W hile it is counsel’s duty to act as an advocate for his client and an

officer of the court, “if counsel finds his case to be w holly frivolous, after a

conscientious examination of it, he should so advise the court and request

permission to withdraw.” Anders, 386 U.S. at 744. After an opportunity for the

appellant to respond, this court must “then conduct a full examination of the

record to determine whether defendant's claims are wholly frivolous. ... If the

court concludes after such an examination that the appeal is frivolous, it may

grant counsel's motion to withdraw and may dismiss the appeal.” United States v.

Calderon, 428 F.3d 928, 930 (10th Cir. 2005).

W e first address M r. Lopez-Vasquez's conviction. His counsel advises, and

the record reflects, that the district court complied with all the requirements of

Federal Rule of Criminal Procedure 11, and M r. Lopez-Vasquez was fully advised

of his rights during the plea hearing, understood them and the impact of pleading

guilty, and entered his guilty plea knowingly and voluntarily. On appeal, M r.

Lopez-Vasquez does not claim his guilty plea was otherwise unknowing and

involuntary or that the district court did not comply with Rule 11 requirements,

-6- but he does appear to claim that, but for the alleged ineffective assistance of

counsel, he w ould not have entered his guilty plea. However, at this juncture, w e

decline to consider his argument. This is because “[i]neffective assistance of

counsel claims ‘should be brought in collateral proceedings, not on direct appeal.

Such claims brought on direct appeal are presumptively dismissible, and virtually

all will be dismissed.’” Calderon, 428 F.3d at 931 (quoting United States v.

Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995)).

W e next review M r. Lopez-Vasquez’s sentence, noting neither he nor his

counsel has raised any argument on appeal contending the sentence is in error,

and at sentencing, neither the government nor M r. Lopez-Vasquez filed an

objection to the presentence report. However, at sentencing, M r. Lopez-Vasquez

did request a downward departure based on cultural assimilation grounds, an

alleged disparity of sentencing based on certain fast track programs, and the fact

his aggravated felony is over twenty-five years old. W e review for

reasonableness the ultimate sentence imposed. Booker, 543 U.S. at 261-62. “W e

require reasonableness in two respects – the length of the sentence as well as the

method by which the sentence was calculated.” United States v. Lopez-Flores,

444 F.3d 1218, 1220 (10th Cir. 2006) (quotation marks and citation omitted),

petition for cert. filed (U.S. Jul. 7, 2006) (No. 06-5217). If the district court

“properly considers the relevant Guidelines range and sentences the defendant

-7- within that range, the sentence is presumptively reasonable,” but “[t]he defendant

may rebut this presumption by demonstrating that the sentence is unreasonable in

light of the other sentencing factors laid out in § 3553(a).” United States v.

Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006).

After a careful review of the record concerning M r. Lopez-Vasquez’s

sentence, we conclude the district court’s sentence is “reasoned and reasonable.”

United States v. Tsosie, 376 F.3d 1210, 1218 (10th Cir. 2004), cert. denied, 543

U.S. 1155 (2005). Nothing in the record on appeal indicates the district court

incorrectly calculated M r. Lopez-Vasquez’s sentence. It is also clear the district

court applied the appropriate factors under 18 U.S.C. § 3553(a) in determining the

length of M r. Lopez-Vasquez’s sentence, giving a reasoned analysis and rulings

for rejecting his proffered reasons for a sentence reduction below the advisory

Guidelines range.

Accordingly, we identify no meritorious appellate issues for our review and

therefore GR A N T counsel’s request to withdraw and DISM ISS M r. Lopez-

Vasquez’s appeal.

Entered by the C ourt:

W ADE BRO RBY United States Circuit Judge

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