United States v. Carbajal ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 11 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 03-8045
v. (D. Wyoming)
ROBERT CARBAJAL, (D.C. No. 01-CR-75-J)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before EBEL, HENRY, and HARTZ, 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. The case is therefore
ordered submitted without oral argument.
Robert Carbajal was indicted and arrested for conspiracy to possess with
intent to distribute, and to distribute, methamphetamine and cocaine, in violation
*
This order and judgment is not binding precedent, except under the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.
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(B), and 846. After initially
pleading not guilty, Mr. Carbajal entered a plea of guilty at a change of plea
hearing. On February 20, 2002, the district court sentenced Mr. Carbajal to 168
months’ imprisonment, five years’ supervised release, and a fine of $1000.00. He
moved to have his sentence vacated based on his counsel’s failure to file an
appeal. The United States agreed with Mr. Carbajal’s position, and the district
court granted the motion to vacate. On May 9, 2003, Mr. Carbajal, represented by
new counsel, 1 was re-sentenced to 168 months’ imprisonment, five years’
supervised release, and a fine of $1000.00.
Mr. Carbajal now appeals his sentence. His attorney has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), and has moved for leave to
withdraw as counsel. The certificate of service indicates that Mr. Carbajal has
been served with the brief and motion; no response has been received from him,
and the government has declined to file a response brief. We grant leave to
withdraw and affirm the conviction.
Anders holds that “if counsel finds his case to be wholly frivolous, after a
conscientious examination of it, he should so advise the court and request
1
Mr. Carbajal was represented by a court-appointed federal public defender
throughout the proceedings. Mr. Carbajal’s current counsel, Timothy J. Judson,
did not enter an appearance in the district court on Mr. Carbajal’s behalf until
April 24, 2003. Notice of appeal was filed on May 21, 2003.
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permission to withdraw.” 386 U.S. at 744. Counsel’s request to withdraw must
“be accompanied by a brief referring to anything in the record that might arguably
support the appeal,” and a copy of this brief must be served on the client. Id.Upon receiving an Anders brief, this court “proceeds, after a full examination of
all the proceedings, to decide whether the case is wholly frivolous.” Id.We note at the outset that by pleading guilty, Mr. Carbajal waived all non-
jurisdictional challenges to his conviction and his “only avenue for challenging
his conviction is to claim that he did not voluntarily or intelligently enter his
plea.” United States v. Wright, 43 F.3d 491, 494 (10th Cir. 1994). As indicated
in counsel’s Anders brief, Mr. Carbajal seeks to raise two issues on appeal: 1)
lack of voluntariness of his guilty plea, and 2) ineffective assistance of counsel.
We have fully examined the proceedings as required by Anders and conclude that
the appeal is wholly without merit.
Nothing in the record suggests that Mr. Carbajal’s guilty plea was made
under duress or coercion. At the change of plea hearing, the district court
explained to Mr. Carbajal the rights he would relinquish by pleading guilty. The
court told Mr. Carbajal, “You need to understand that you do have the right to
plead not guilty to any offense charged against you and you do have the right to
continue with that plea.” Rec. vol. III, at 17 (Tr. of Dec. 12, 2001 Change of
Plea Proc.). When asked, “You understand these rights?” Mr. Carbajal replied,
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“Yes, Your Honor.” Id. at 18. At the re-sentencing proceeding, the judge directly
asked Mr. Carbajal, “Was that plea agreement signed voluntarily of your own free
will?” Rec. vol. V, at 5 (Tr. of May 9, 2003 Re-Sentencing Proc.). Mr. Carbajal
answered, “Yes, sir.”
As to Mr. Carbajal’s ineffective assistance claim, we have held that,
generally, “[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.” United States
v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995); see also Massaro v. United
States, 123 S.Ct. 1690, 1694 (2003) (“In light of the way our system has
developed, in most cases a motion brought under § 2255 is preferable to direct
appeal for deciding claims of ineffective-assistance.”). We therefore decline to
review Mr. Carbajal’s ineffective assistance claim in this direct appeal.
After careful review of the proceedings, we agree with counsel that no non-
frivolous grounds for appeal appear on this record. Accordingly, we AFFIRM the
conviction and GRANT Mr. Carbajal’s counsel’s request to withdraw.
Entered for the Court,
Robert H. Henry
Circuit Judge
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