United States v. Gutierrez-Vasquez

FILED
United States Court of Appeals
Tenth Circuit
April 16, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 09-2203
v. (D.Ct. No. 2:08-CR-02444-BB-1)
(D. N.M.)
ALONSO GUTIERREZ-VASQUEZ,
Defendant-Appellant.
_______________________________
ORDER AND JUDGMENT *
Before BARRETT, ANDERSON, and BRORBY, Senior Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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.
After Defendant-Appellant Alonso Gutierrez-Vasquez pled guilty to one
count of unlawful reentry of a previously removed alien subsequent to a felony
*
This order and judgment is not binding precedent except under the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.
conviction, the district court sentenced him to thirty months imprisonment.
Although Mr. Gutierrez-Vasquez appeals his conviction and sentence, his attorney
has filed an Anders brief and moved for permission to withdraw as counsel. See
Anders v. California, 386 U.S. 738, 744 (1967). For the reasons set forth
hereafter, we grant counsel’s motion to withdraw and dismiss this appeal. Id.I. Background
On January 12, 2009, Mr. Gutierrez-Vasquez pled guilty, without entering a
plea agreement, to unlawful reentry in violation of 8 U.S.C. § 1326(a)(1) and (2)
and (b). The record on appeal shows a plea hearing was held before the district
court on January 12, 2009, at which Mr. Gutierrez-Vasquez appeared and pled
guilty. Thereafter, a probation officer prepared a presentence report calculating
Mr. Gutierrez-Vasquez’s sentence under the applicable 2008 United States
Sentencing Guidelines (“U.S.S.G.” or “Guidelines”). The probation officer set
the base offense level at 8 under U.S.S.G. § 2L1.2(a) and added twelve levels
under U.S.S.G. § 2L1.2(b)(1)(B) because Mr. Gutierrez-Vasquez was deported
subsequent to having been convicted for a felony drug trafficking offense for
which the sentence was thirteen months or less. Based on his acceptance of
responsibility, the probation officer included a three-level reduction, for a total
offense level of 17. Because Mr. Gutierrez-Vasquez committed the instant
offense while on probation for his drug trafficking offense and less than two years
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after his release from custody, three points were added to his criminal history
score, resulting in a criminal history category of III. A total offense level of 17,
together with a criminal history category of III, resulted in a Guidelines range of
thirty to thirty-seven months imprisonment.
Mr. Gutierrez-Vasquez’s counsel objected to the presentence report,
claiming Mr. Gutierrez-Vasquez’s criminal history was over-represented because
his drug trafficking conviction was used to increase his offense level as well as
his criminal history points and category, and therefore, his criminal history
category should be reduced to II. The district court rejected his argument,
sentencing Mr. Gutierrez-Vasquez to thirty months imprisonment, at the low end
of the Guidelines range.
Following Mr. Gutierrez-Vasquez’s timely pro se notice of appeal, his
appointed counsel filed an Anders appeal brief explaining no meritorious issues
exist on appeal. See Anders, 386 U.S. at 744. Counsel pointed out that in
appealing his sentence, Mr. Gutierrez-Vasquez believes his criminal history was
over-represented and should have been calculated at category II. However, after
careful examination of the relevant law and record on appeal, including the plea
and sentencing hearing transcripts, his counsel asserts no reversible error, legally
nonfrivolous question, or jurisdictional defect exists warranting an appeal.
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Pursuant to Anders, this court gave Mr. Gutierrez-Vasquez an opportunity to
respond to his counsel’s Anders brief. See 386 U.S. at 744. On February 10,
2010, Mr. Gutierrez-Vasquez filed a response, stating his attorney did not allow
him to speak at the sentencing hearing; did not object to his offense level, which
seemed high; and forced him “to sign the plea” by stating if he did not “he would
do everything possible to see to it that I would get 30 months for a prison
sentence.” Based on his arguments, we assume Mr. Gutierrez-Vasquez is
appealing both his conviction and sentence. The government filed a notice of its
intention not to file an answer brief in this appeal.
II. Discussion
As required by Anders, we have conducted a full examination of the record
before us. See id. Mr. Gutierrez-Vasquez summarily argues, without sufficient
explanation, that his counsel did not allow him to speak at the sentencing hearing,
did not object to his offense level, and forced him “to sign the plea.” These
arguments go to the voluntariness of his plea, ineffective assistance of his
counsel, and the calculation and reasonableness of his sentence.
To begin, we have long held ineffective assistance of counsel claims should
be brought in collateral proceedings and not on direct appeal. See United States
v. Calderon, 428 F.3d 928, 931 (10th Cir. 2005). We have further held “‘[s]uch
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claims brought on direct appeal are presumptively dismissible, and virtually all
will be dismissed.’” Id. (quoting United States v. Galloway, 56 F.3d 1239, 1240
(10th Cir. 1995)). As a result, we decline to consider Mr. Gutierrez-Vasquez’s
ineffective assistance of counsel claim on direct appeal. See Massaro v. United
States, 538 U.S. 500, 504 (2003) (holding “in most cases a motion brought under
[28 U.S.C.] § 2255 is preferable to direct appeal for deciding claims of ineffective
assistance”).
As to the voluntariness of his plea, Mr. Gutierrez-Vasquez states his
counsel forced him to sign a plea, but we note that in his case he did not enter a
formal, written plea agreement, leaving us to question the legitimacy of his claim
on appeal. In addition, neither Mr. Gutierrez-Vasquez nor his counsel have
submitted the transcript of his plea hearing for our review or provided any other
information regarding the hearing for us to consider, other than the Plea Minute
Sheet. “When the party asserting an issue fails to provide a record sufficient for
considering that issue, [this] court may decline to consider it.” 10th Cir. R.
10.3(B). Finally, Mr. Gutierrez-Vasquez conclusorily states his counsel made
him sign a plea, without providing us any additional argument or information as
to why he continued to plead guilty while undergoing a Rule 11 colloquy with the
district court, as shown in the Plea Minute Sheet. While we construe his pro se
pleadings liberally, see Haines v. Kerner, 404 U.S. 519, 520 (1972), we have held
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perfunctory or cursory reference to issues, which are unaccompanied by some
effort at developed argument, are inadequate to warrant consideration. See United
States v. Almaraz, 306 F.3d 1031, 1041 (10th Cir. 2002). For these reasons, and
because Mr. Gutierrez-Vasquez’s argument as to the voluntariness of his plea is
related to his ineffective assistance of counsel claim, we decline to address it,
leaving such an argument for consideration under 28 U.S.C. § 2255.
Finally, we turn to Mr. Gutierrez-Vasquez’s sentencing argument in which
he suggests his offense level was too high and his criminal history category was
over-represented. We review his sentence for reasonableness as guided by the
factors in 18 U.S.C. § 3553(a). See United States v. Kristl, 437 F.3d 1050, 1053
(10th Cir. 2006) (per curiam). Having made such a review, we find no
nonfrivolous basis for challenging the sentence imposed. In calculating his
sentence, both the probation officer and the district court properly applied the
correct offense level and appropriately used U.S.S.G. § 4A1.1(d) and (e) in
calculating his criminal history category. With respect to the latter, § 4A1.1(d)
provides for adding two criminal history points if, as here, “the defendant
committed the instant offense while under any criminal justice sentence, including
probation ....” U.S.S.G. § 4A1.1(d). Similarly, § 4A1.1(e) provides for adding
two points if the defendant committed the instant offense less than two years after
release from imprisonment, but only one point if, as here, two points were already
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added under subsection (d). Mr. Gutierrez-Vasquez qualified for both of these
increases and, accordingly, three points were added to his criminal history score.
As we held in United States v. Pech-Aboytes, the Guidelines advise the district
court to increase criminal history points in such instances. See 562 F.3d 1234,
1238-39 (10th Cir. 2009). As a result, we conclude the district court properly
calculated Mr. Gutierrez-Vasquez’s sentence.
After properly calculating Mr. Gutierrez-Vasquez’s sentence, the district
court sentenced him to thirty months imprisonment, which is at the low end of the
advisory Guidelines range and entitled to a rebuttable presumption of
reasonableness. See Kristl, 437 F.3d at 1053-55. Mr. Gutierrez-Vasquez has not
rebutted this presumption with any nonfrivolous reason warranting a lower
sentence. Id.III. Conclusion
For these reasons, no meritorious appellate issue exists for our review on
direct appeal. Accordingly, we GRANT counsel’s motion to withdraw and
DISMISS Mr. Gutierrez-Vasquez’s appeal.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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