United States v. Angulo-Valenzuela , 4 F. App'x 608 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 12 2001
TENTH CIRCUIT
__________________________ PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-1135
(D. Colo.)
JUAN DIEGO ANGULO- (D.Ct. No. 99-CR-367-D)
VALENZUELA,
Defendant-Appellant.
____________________________
ORDER AND JUDGMENT *
Before BRORBY, KELLY, and MURPHY, 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 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This order and judgment is not binding precedent except under the doctrines of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. 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.
Appellant Juan Diego Angulo-Valenzuela, appearing pro se and through
Anders counsel, 1 appeals the sentence the district court imposed following his
guilty plea. We exercise our jurisdiction under 28 U.S.C. § 1291 and affirm.
A grand jury indicted Mr. Angulo-Valenzuela for illegal entry of an alien
into the United States after deportation in violation of 8 U.S.C. § 1326(a), which
requires a maximum of two years imprisonment. The government then filed a
notice of sentence enhancement under 8 U.S.C. § 1326(b)(2), which sets a
maximum sentence of twenty years imprisonment for illegal entry after an
aggravated felony conviction committed prior to deportation. The government
noted Mr. Angulo-Valenzuela qualified for a sentence enhancement under
§ 1326(b)(2) because he received a state conviction for his possession of
marijuana with intent to distribute prior to his deportation. Mr. Angulo-
Valenzuela subsequently pled guilty to the indictment, acknowledging the
applicability of both § 1326(b)(2) and United States Sentencing Guideline
1
See Anders v. California, 386 U.S. 738, 744 (1967) (requiring counsel who finds
an appeal wholly frivolous to advise the court, request permission to withdraw, and
provide an accompanying brief referring to anything in the record that might arguably
support the appeal.) Accordingly, Mr. Angulo-Valenzuela’s appellate attorney requested
permission to withdraw as counsel and provided a brief outlining Mr. Angulo-
Valenzuela’s claims and noting Mr. Angulo-Valenzuela’s appeal was without merit and
frivolous.
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(U.S.S.G.) § 2L1.2, which requires a sixteen-level increase in the base offense
level for an aggravated felony committed prior to deportation. Prior to
sentencing, a probation officer issued a Presentence Investigation Report, which
recommended: 1) applying a base offense level of 8 for a violation of 8 U.S.C.
§ 1326(a) and (b)(2); 2) enhancing the offense level by sixteen levels under
U.S.S.G. § 2L1.2(b)(1)(A) because Mr. Angulo-Valenzuela was deported after
conviction for an aggravated felony; and 3) reducing the offense level by three
levels under U.S.S.G. § 3E1.1(a) and (b) for acceptance of responsibility. Based
on a resulting offense level of 21 and a criminal history category of III, the
probation officer recommended a sentence of forty-six months. In the
presentence report, the probation officer stated there were no known factors
warranting departure. Mr. Angulo-Valenzuela made no objection to the
Presentence Investigation Report. Following the sentencing hearing, the district
court applied the probation officer’s recommended calculations and sentenced Mr.
Angulo-Valenzuela to forty-six months imprisonment. The district court found no
reason to depart from the guidelines range.
On appeal, Mr. Angulo-Valenzuela’s counsel acknowledges Mr. Angulo-
Valenzuela’s sentence “was not imposed in violation of law or as a result of an
incorrect application of the sentencing guidelines.” In so doing, counsel points
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out Mr. Angulo-Valenzuela agreed in his plea agreement to the sentencing
guideline calculations applied by the probation officer and district court. In
response, Mr. Angulo-Valenzuela filed his own pro se brief, asserting: 1) his
Colorado state felony conviction is not an “aggravated felony” for the purpose of
a sixteen-level enhancement under U.S.S.G. § 2L1.2; 2) the statutes under which
the district court convicted and sentenced him – 8 U.S.C. § 1326(a) and (b)(2) –
are ambiguous; 3) his trial counsel should have established, after a thorough
investigation of the relevant facts and law, that application of the rule of lenity is
warranted with respect to the penalty provided under § 1326(b)(2); 4) his trial
counsel failed to file a motion for, and the district court failed to apply, a
downward departure under U.S.S.G. § 5K2.0; and 5) his trial counsel “should
have [been] aware of the disparity among districts to file for a reduction of
sentence.” Although Mr. Angulo-Valenzuela raises these issues as grounds for
appeal, he fails to provide any discussion or authority supporting them.
Generally, we review the district court’s factual findings for clear error and
its application of the Sentencing Guidelines de novo. See United States v.
Roberts, 185 F.3d 1125, 1144 (10th Cir. 1999), cert. denied, 120 S. Ct. 1960(2000). However, because Mr. Angulo-Valenzuela did not raise any of his
sentencing issues prior to sentencing, we apply a plain error standard of review.
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See United States v. Massey, 48 F.3d 1560, 1568 (10th Cir.), cert. denied, 515
U.S. 1167 (1995). In addition, an appeal which advances no reasoned argument or
legal authority is considered insufficient and therefore, we many deem the
unsupported issues waived. See United States v. Hardwell, 80 F.3d 1471, 1492
(10th Cir. 1996).
We begin by noting Mr. Angulo-Valenzuela fails to support any of the
issues raised on appeal with a reasoned argument or legal authority. This alone is
sufficient reason to dismiss his appeal. See Hardwell, 80 F.3d at 1492. However,
even if we consider the issues Mr. Angulo-Valenzuela raises, his appeal must
nevertheless fail.
First, it is well established a state felony conviction for possession of a
controlled substance constitutes an aggravated felony for purposes of 8 U.S.C.
§ 1326(b)(2). See United States v. Lugo, 170 F.3d 996, 1006 (10th Cir. 1999);
United States v. Valenzuela-Escalante, 130 F.3d 944, 945-47 (10th Cir. 1997);
United States v. Cabrera-Sosa, 81 F.3d 998, 999-1000 (10th Cir.), cert. denied,
519 U.S. 885 (1996). Thus, Mr. Angulo-Valenzuela’s state conviction for
possession of marijuana with intent to distribute is an “aggravated felony.” Id.Consequently, the district court did not error in applying either 8 U.S.C.
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§ 1326(b)(2) or U.S.S.G. § 2L1.2(b)(1)(A), which both prescribe a sentence
enhancement for a previous deportation after an aggravated felony conviction.
See 8 U.S.C. 1326(b)(2); U.S.S.G. § 2L1.2(b)(1)(A); see also United States v.
Cisneros-Cabrera, 110 F.3d 746, 748 (10th Cir.), cert. denied, 522 U.S. 969(1997).
Second, we have determined that both 8 U.S.C. §§ 1326(a) and 1326(b)(2),
as well as U.S.S.G. § 2L1.2, are not ambiguous. See Cisneros-Cabrera, 110 F.3d
at 747-48 (discussing § 1326(b)(2) and § 2L1.2); United States v. Meraz-Valeta,
26 F.3d 992, 996-97 (10th Cir. 1994) (considering § 1326(a)). As a result, Mr.
Angulo-Valenzuela’s argument that both these statutes are ambiguous is clearly
meritless.
We next turn to Mr. Angulo-Valenzuela’s contention his trial counsel failed
to raise the rule of lenity, argue for a downward departure, or somehow
acknowledge the “disparity among districts to file for a reduction of sentence.”
To the extent Mr. Angulo-Valenzuela is claiming ineffective assistance of
counsel, we have held “[i]neffective assistance of counsel claims should be
brought in collateral proceedings, not on direct appeal.” United States v.
Boigegrain, 155 F.3d 1181, 1186 (10th Cir. 1998) (quotation marks and citation
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omitted), cert. denied, 525 U.S. 1083 (1999). Only in the very rare instance when
an ineffective assistance claim is fully developed in the record, will we hear it for
the first time on appeal. Id. In this case, our review of the record and Mr.
Angulo-Valenzuela’s failure to discuss the issues leads us to conclude the record
is not fully developed for the purpose of considering his ineffective assistance of
counsel claims on direct appeal.
In the event Mr. Angulo-Valenzuela is not attempting to raise ineffective
assistance of counsel claims, his arguments nevertheless lack merit. First, we
have already rejected the same argument that the enhanced penalty assessed under
8 U.S.C. § 1326(b) and U.S.S.G. § 2L1.2(b) should be given a more lenient
interpretation under the rule of lenity. See United States v. Frias-Trujillo, 9 F.3d
875, 878 (10th Cir. 1993). Second, if Mr. Angulo-Valenzuela is asserting his
sentence is somehow disparate with other defendants with similar records and
guilty conduct, he fails to cite to any facts in the record or elsewhere supporting a
disparity of sentence argument. See United States v. Contreras, 108 F.3d 1255,
1271 (10th Cir.), cert. denied, 522 U.S. 839 (1997). Finally, we lack jurisdiction
to address Mr. Angulo-Valenzuela’s assertion the district court improperly failed
to apply a downward departure. We have held that “[a]bsent the trial court’s clear
misunderstanding of its discretion to depart, or its imposition of a sentence which
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violates the law or incorrectly applies the guidelines, we have no jurisdiction to
review a refusal to depart” downward. United States v. Saffo, 227 F.3d 1260,
1271 (10th Cir. 2000). Because Mr. Angulo-Valenzuela fails to show the district
court misunderstood its discretion to depart downward, or that it improperly
applied the law or guidelines in sentencing him, we lack jurisdiction to consider
the district court’s refusal to depart downward.
For these reasons, we grant Mr. Angulo-Valenzuela’s counsel permission to
withdraw, and AFFIRM Mr. Angulo-Valenzuela’s sentence and conviction.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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