United States v. Barajas-Ramirez ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 1 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 03-4247
v. (D. Utah)
JUAN BARAJAS-RAMIREZ, (D.C. No. 03-CR-455-PGC)
aka Juan Salvador Gaviota,
aka Jose Gomez Lopez,
aka Jesus Garcia,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA, Chief Judge, ANDERSON and BALDOCK , 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This order and judgment is not binding precedent, except under the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.
Juan Barajas-Ramirez pled guilty to illegal reentry into the United States
following deportation, in violation of 8 U.S.C. § 1326. He was sentenced to
twenty-four months’ imprisonment, followed by three years of supervised release.
He appeals his sentence, arguing that his base offense level should not have been
increased twelve levels based on a prior felony drug conviction that took place
sixteen years earlier, and that he received ineffective assistance of counsel.
Mr. Barajas-Ramirez’s appointed counsel has filed a brief pursuant to
Anders v. California , 386 U.S. 738 (1967), advising this court that, “after a
conscientious examination” of his client’s case, he has found this appeal to be
“wholly frivolous.” Id. at 744. After carefully reviewing the record, we agree
with Mr. Barajas-Ramirez’s counsel that this appeal presents no non-frivolous
issues. We therefore affirm Mr. Barajas-Ramirez’s sentence.
The undisputed facts as set forth in the U.S. Probation Office’s presentence
report (“PSR”) indicate that Mr. Barajas-Ramirez was arrested on May 16, 2003,
as a result of various traffic offenses. A subsequent background check based on
Mr. Barajas-Ramirez’s fingerprints revealed that he had been deported on
January 23, 1997, following a conviction for misappropriation of music, and that
he had twice previously, in 1985 and 1987, been convicted in California state
court of selling marijuana, a felony, for which he received sentences of less than
thirteen months.
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Accordingly, the PSR set Mr. Barajas-Ramirez’s base offense level at 8,
pursuant to United States Sentencing Commission, Guidelines Manual (“USSG”),
§2L1.2(a) (Nov. 2002) (unlawfully entering the United States). The PSR
increased the base offense level by 12 levels, pursuant to USSG §2L1.2(b)(1)(B)
(prior deportation following a conviction for a felony drug trafficking offense for
which the sentence imposed was thirteen months or less). The PSR then
subtracted 3 levels for acceptance of responsibility, pursuant to USSG §3E1.1,
yielding a total offense level of 17.
The PSR indicated Mr. Barajas-Ramirez had only one prior sentence in the
past ten years, giving him one criminal history point pursuant to USSG §4A1.1(e)
and yielding a criminal history category of I pursuant to USSG §5A. The
resulting guideline range was 24-30 months. Mr. Barajas-Ramirez did not object
to the PSR’s recommendations, nor did he request a downward departure, though
he did state that he had not “even committed a misdemeanor” for the past sixteen
years, following the birth of his son, and requested “an exception to deportation
so that I could take care of some things that my son needs.” Tr. of Sentencing
Hr’g at 6, R. Vol. III. The district court adopted the PSR and imposed a sentence
at the low end of the range.
“We review a district court’s interpretation of the Sentencing Guidelines de
novo, and its factual findings for clear error, giving due deference to the district
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court’s application of the guidelines to the facts.” United States v. Brown , 314
F.3d 1216, 1222 (10th Cir. 2003). Here, we discern no basis for challenging the
district court’s calculation of Mr. Barajas-Ramirez’s offense level or criminal
history category under the Sentencing Guidelines. As the Second Circuit
recognized in a similar context, “[t]he Sentencing Guidelines provide no time
limit on the prior federal and state convictions that may be used to trigger a
sentence enhancement.” United States v. Stultz , 356 F.3d 261, 268 (2d Cir.
2004). We have held, moreover, that a district court does not err by considering
all prior convictions, and not only the conviction immediately preceding a
defendant’s deportation, when imposing a sentence under 8 U.S.C. § 1326(b).
United States v. Soto-Ornelas , 312 F.3d 1167, 1171 (10th Cir. 2002).
We further note that “[i]neffective assistance of counsel claims should be
brought in collateral proceedings, not on direct appeal.” United States v.
Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc).
The district court’s sentence is therefore AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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