United States v. Banuelos-Barraza , 639 F.3d 1262 ( 2011 )

639 F.3d 1262 (2011)

UNITED STATES of America, Plaintiff-Appellee,
v.
Eduardo BANUELOS-BARRAZA, Defendant-Appellant.

No. 10-4125.

United States Court of Appeals, Tenth Circuit.

April 7, 2011.

Diana Hagen, Esq., Office of the United States Attorney, Salt Lake City, UT, for Plaintiff-Appellee.

Ann Marie Taliaferro, Brown, Bradshaw & Moffat, Salt Lake City, UT, for Defendant-Appellant.

Before LUCERO, GORSUCH, and MATHESON, Circuit Judges.

ORDER

The order and judgment filed March 31, 2011, has been amended. The amended order and judgment, filed nunc pro tunc to the original filing date, is attached to this order.

ORDER AND JUDGMENT^[*]

NEIL M. GORSUCH, Circuit Judge.

Eduardo Banuelos-Barraza pleaded guilty to one count of possession of cocaine with intent to distribute and one count of reentering as a previously removed alien. The district court then sentenced Mr. Banuelos-Barraza to 46 months in prison followed by 60 months supervised release. Trial counsel subsequently withdrew from the case, but filed a notice of appeal before she did.^[1] Mr. Banuelos-Barraza's newly appointed appellate counsel has now filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), advising us that she discerns no colorable basis for the appeal and seeking leave to withdraw.

Anders authorizes a defendant's lawyer to seek permission to withdraw from an appeal if, "after a conscientious examination," the lawyer finds the appeal "wholly frivolous." 386 U.S. at 744, 87 S.Ct. 1396. Invoking Anders requires the lawyer to "submit a brief to the client and the appellate court indicating any potential appealable issues based on the record." United States v. Calderon, 428 F.3d 928, 930 (10th Cir.2005) (citing Anders, 386 U.S. at 744, 87 S.Ct. 1396). The client may then submit his own arguments for the court's consideration. Id. And we must then "conduct a full examination of the record to determine whether [the] defendant's claims are wholly frivolous." Id. If they are, we may grant counsel's motion to withdraw and dismiss the appeal. Id.

In her Anders brief, Mr. Banuelos-Barraza's current counsel identifies three potential points of appeal in this case: the district court's decision denying Mr. Banuelos-Barraza's motion to suppress; the reasonableness of the sentence the district court chose; and the effectiveness (or ineffectiveness) of trial counsel. All three lines of attack, counsel argues, would be pointless, lacking any merit. Despite being afforded opportunity to do so, Mr. Banuelos-Barraza has not submitted any materials disputing this analysis or identifying any other additional arguments he would like to pursue. Similarly, the government has indicated by letter its intent not to respond to the Anders brief. After our own independent review of the record, we agree with Mr. Banuelos-Barraza's counsel that any appeal in this case would be fruitless.

First, the Anders brief points out that Mr. Banuelos-Barraza cannot appeal the denial of his motion to suppress. This is because he entered an unconditional plea of guilty, and thereby waived all non-jurisdictional defenses to his conviction. We are constrained by precedent to agree. See United States v. Salazar, 323 F.3d 852, 856 (10th Cir.2003).

Second, the Anders brief raises the possibility that Mr. Banuelos-Barraza might challenge his sentence. But our review of Mr. Banuelos-Barraza's sentence, which is at the bottom of the advisory guidelines range, confirms counsel's assessment that it is neither procedurally nor substantively unreasonable. We therefore agree with Mr. Banuelos-Barraza's counsel that this avenue of appeal would be unavailing as well.

Third, the Anders brief raises the possibility that Mr. Banuelos-Barraza might argue his trial counsel was ineffective. The brief correctly notes, however, that except in extraordinary circumstances claims of ineffective assistance of counsel "should be brought in collateral proceedings rather than on direct appeal from a conviction." See United States v. Brooks, 438 F.3d 1231, 1242 (10th Cir.2006). And, like counsel, we discern no reason why we would depart from that rule in this case.

Counsel's motion to withdraw is granted and this appeal is dismissed.

NOTES

[*] After examining appellant's brief and the 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) and 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. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1.

[1] Mr. Banuelos-Barraza's appellate counsel points out that the notice of appeal was not timely filed, coming one day after the 14 day period afforded by Fed. R.App. P. Rule 4(b)(1)(A). This rule is not jurisdictional, however, see United States v. Garduno, 506 F.3d 1287, 1290-91 (10th Cir.2007), and we have declined to enforce it sua sponte in circumstances similar to these, see United States v. Mitchell, 518 F.3d 740, 750-51 (10th Cir. 2008). Mr. Banuelos-Barraza's motion to modify the record on appeal is mooted by this ruling.