United States v. Dimas-Bernal , 44 F. App'x 430 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 23 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 01-1477
(D.C. No. 01-CR-82-N)
GUADALUPE DIMAS-BERNAL, also (D. Colorado)
known as Javier Dimas-Manzanares,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and MURPHY, Circuit Judges. **
Petitioner-appellant Guadalupe Dimas-Bernal appeals the district
court’s refusal to depart from the Sentencing Guidelines. Because we find
jurisdiction to be lacking, we dismiss the appeal.
Mr. Dimas-Bernal pled guilty to one count of unlawful reentry by an alien
previously deported subsequent to a conviction for an aggravated felony, in
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance 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.
violation of 8 U.S.C. § 1326(a) and (b)(2). He was sentenced to fifty-seven
months imprisonment, to be followed by a three-year supervised release.
The presentence investigation report computed his criminal history score at
eight points, a total score that placed him in criminal history category IV rather
than III. Mr. Dimas-Bernal did not dispute the accuracy of the report’s
calculations, but argued in a motion for a downward departure under U.S.S.G. §
4A1.2 that criminal history category IV significantly over-represented the
seriousness of his criminal record. I R. Doc. 21 at 2.
Mr. Dimas-Bernal’s counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and has moved to withdraw. Anders holds that if
counsel finds an appeal “to be wholly frivolous, after a conscientious examination
of it, he should so advise the court and request permission to withdraw.” Id. at
744. Counsel must also submit to the court a brief addressing anything in the
record that arguably supports the appeal. Id. In the Anders brief, Mr. Dimas-
Bernal’s counsel recognizes that this court lacks jurisdiction to review the district
court’s denial of Mr. Dimas-Bernal’s motion for a downward departure. Mr.
Dimas-Bernal has also filed a response to his counsel’s brief, pleading various
claims not raised in the district court. Because they were not raised below, we
will not consider them on appeal. See In re Walker, 959 F.2d 894, 896 (10th Cir.
1992). Mr. Dimas-Bernal also raises a vague claim of ineffective assistance of
-2-
counsel. However, “[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). We therefore decline to
review the claim here.
Unless the judge’s language unambiguously states that the judge does not
believe he has the authority to make a downward departure, we do not have
jurisdiction to review the denial of a downward departure. United States v.
Guidry, 199 F.3d 1150, 1161 (10th Cir. 1999). The transcript of Mr. Dimas-
Bernal’s change of plea hearing contains no such statement.
Pursuant to our duty under Anders, we have conducted an independent
review. Because we agree that there are no nonfrivolous issues on appeal, we
grant counsel’s motion to withdraw, dismiss the appeal for lack of jurisdiction,
and affirm Mr. Dimas-Bernal’s sentence.
Counsel’s motion to withdraw is GRANTED. The appeal is DISMISSED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
-3-