United States v. Zamarron-Perez , 128 F. App'x 81 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS APR 20 2005
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 04-2247
ORLANDO ZAMARRON-PEREZ, (D.C. No. CR-04-1033 JB)
also known as Javier Fernandez, also (New Mexico)
known as Enrique Martinez, also
known as Gerardo Martinez, also
known as Juan Carlos Perez,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.
Orlando Zamarron-Perez pled no contest to one count of reentry of a
deported alien previously convicted of an aggravated felony in violation of 8
*
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 submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
U.S.C. §§ 1326(a) and (b)(2). Based on a total offense level of thirteen and a
criminal history category of VI, Mr. Zamarron-Perez’s guidelines sentence range
was calculated at thirty-three to forty-one months incarceration. The district court
sentenced him at the top of that range to a forty-one month term. Mr. Zamarron-
Perez’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), and moved for leave to withdraw as counsel. We grant counsel’s motion
to withdraw and dismiss the appeal.
Anders holds that if counsel finds a case to be wholly frivolous after
conscientious examination, he may so advise the court and request permission to
withdraw. Counsel must also submit to both the court and his client a brief
referring to anything in the record arguably supportive of the appeal. The client
may then raise any point he chooses, and the court thereafter undertakes a
complete examination of all proceedings and decides whether the appeal is in fact
frivolous. If it so finds, it may grant counsel’s request to withdraw and dismiss
the appeal. Id. at 744. Pursuant to Anders, counsel provided Mr. Zamarron-Perez
with a copy of his appellate brief and Mr. Zamarron-Perez filed a pro se reply
brief raising two issues.
Mr. Zamarron-Perez first complains that he was denied his Sixth
Amendment right to effective assistance of counsel. We have held that
ineffective assistance of trial counsel claims should be brought in collateral
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proceedings, not on direct appeal. United States v. Galloway, 56 F.3d 1239, 1240
(10th Cir. 1995). “Such claims brought on direct appeal are presumptively
dismissible, and virtually all will be dismissed.” Id. Mr. Zamarron-Perez has
failed to show that his claim qualifies as one of those “rare instances” in which
we should hear an ineffective counsel challenge on direct review. Id.Mr. Zamarron-Perez also contends his sentence was imposed in violation of
United States v. Booker, 125 S. Ct. 738 (2005). In Booker, the Supreme Court
applied the rule it expressed in Apprendi v. New Jersey, 530 U.S. 466 (2000), to
the Federal Sentencing Guidelines, holding that the Sixth Amendment requires
“[a]ny fact (other than a prior conviction) which is necessary to support a
sentence exceeding the maximum authorized by the facts established by a plea of
guilty or a jury verdict must be admitted by the defendant or proved to a jury
beyond a reasonable doubt.” 125 S. Ct. at 756. To remedy the guidelines’ Sixth
Amendment problem, the Court severed and excised 18 U.S.C. § 3553(b)(1),
which required mandatory application of the guidelines. Id. at 756-57, 765. As a
result, the guidelines are now advisory in all cases. Id. at 757. In addition, the
Court expressly stated that its “remedial interpretation of the Sentencing Act”
must be applied “to all cases on direct review.” Id. at 769. In determining Mr.
Zamarron-Perez’s sentence, the district court did not rely upon judge-found facts,
but it did apply the then-mandatory federal sentencing guidelines. We must
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therefore evaluate Mr. Zamarron-Perez’s sentence in light of Booker.
Because Mr. Zamarron-Perez did not raise his non-constitutional Booker
claim in district court, we review for plain error. F ED R. C RIM . P. 52(b); United
States v. Gonzalez-Huerta, No. 04-2045, 2005 WL 807008, at *3 (10th Cir. Apr.
8, 2005) (en banc). To establish plain error, Mr. Zamarron-Perez must
demonstrate there was (1) error (2) that was plain and (3) affected his substantial
rights. United States v. Cotton, 535 U.S. 625, 631 (2002); Gonzalez-Huerta, 2005
WL 807008, at *3. If he satisfies his burden of establishing the first three prongs
of the plain error test, we may exercise our discretion to correct the error if it
“seriously affect[ed] the fairness, integrity or public reputation of judicial
proceedings.” Johnson v. United States, 520 U.S. 461, 469-70 (1997) (quoting
United States v. Olano, 507 U.S. 725, 736 (1993)); Gonzalez-Huerta, 2005 WL
807008, at *3.
Mr. Zamarron-Perez easily satisfies the first two prongs of plain error
analysis. First, the district court, albeit unknowingly, committed error by
applying the guidelines as mandatory in sentencing Mr. Zamarron-Perez. See
Gonzalez-Huerta, 2005 WL 807008, at *3. Second, the error is now “plain” or
“obvious.” Johnson, 520 U.S. at 468 (“where the law at the time of trial [or
sentencing] was settled and clearly contrary to the law at the time of appeal – it is
enough that an error be ‘plain’ at the time of appellate consideration”). We need
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not decide whether Mr. Zamarron-Perez can satisfy his burden under the third
prong of plain error analysis “because even assuming [his] substantial rights were
affected, the error did not seriously affect the fairness, integrity, or public
reputation of judicial proceedings.” Cotton, 535 U.S. at 632-33; Johnson, 520
U.S. at 469-70; Gonzalez-Huerta, 2005 WL 807008, at *6 (“We need not
determine whether [the defendant] can satisfy this burden because even if he were
to meet the third prong, he must also satisfy the fourth prong to obtain relief.”).
This court “will not notice a non-constitutional error, such as the one in the
case before us, unless it is both ‘particularly egregious’ and our failure to notice
the error would result in a ‘miscarriage of justice.’” Gonzalez-Huerta, 2005 WL
807008, at *7 (quoting United States v. Gilkey, 118 F.3d 702, 704 (10th Cir.
1997)). After the district court determined that Mr. Zamarron-Perez’s applicable
guidelines range was thirty-three to forty-one months, it opted to sentence Mr.
Zamarron-Perez to a forty-one month term of imprisonment. In other words, the
court exercised its discretion and in doing so sentenced Mr. Zamarron-Perez to
serve the maximum term of imprisonment it could lawfully impose. As a result,
any argument that the district court might have sentenced Mr. Zamarron-Perez
differently had it understood it had discretion to do so is simply unpersuasive.
Given “there is no record evidence to support a lower sentence, we cannot
conclude that [Mr. Zamarron-Perez’s] sentence is particularly egregious or a
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miscarriage of justice.” Id. at *8.
Because Mr. Zamarron-Perez has no meritorious grounds for appeal, we
GRANT counsel’s request to withdraw and we DISMISS the appeal.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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