United States v. Ramirez-Nino , 288 F. App'x 543 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS August 14, 2008
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 07-1507
v. (D. Colorado)
LUIS TOMAS RAMIREZ-NINO, (D.C. No. 04-CR-209-WDM-1)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, MURPHY, and HARTZ, 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.
Luis Tomas Ramirez-Nino pleaded guilty to unlawful re-entry of a deported
alien following a felony conviction, in violation of 8 U.S.C. § 1326(a). Prior to
his deportation, Ramirez-Nino was convicted of the felony offenses of soliciting
*
This order and judgment is not binding precedent except under the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.
child prostitution in violation of Colorado Revised Statute § 18-7-402 and
intimidating a witness, in violation of Colorado Revised Statute § 18-8-704.
Ramirez-Nino filed a pro se “Motion for Resentencing/Reconsideration,
Alternatively Notice of Appeal” asserting his trial attorney was ineffective for
failing to request a continuance of the sentencing hearing. Thereafter, his trial
counsel filed a timely notice of appeal. 1 In this court, Ramirez-Nino’s counsel,
Keyonyu X O’Connell, filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), moving to withdraw as counsel. Specifically, counsel advises that
Ramirez-Nino waived his right to appeal his conviction. In the alternative,
counsel suggests that the appeal raises no arguably meritorious issues.
Under Anders, counsel may “request permission to withdraw where counsel
conscientiously examines a case and determines that any appeal would be wholly
frivolous.” United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005).
Counsel is required to submit a brief to both the defendant and this court
indicating any potential appealable issues. Id. The defendant may then submit
additional arguments. “The [c]ourt must then conduct a full examination of the
record to determine whether defendant’s claims are wholly frivolous. If the court
concludes after such an examination that the appeal is frivolous, it may grant
counsel’s motion to withdraw and may dismiss the appeal.” Id. (citation omitted).
1
Following counsel’s filing of the notice of appeal, the district court struck
the defendant’s pro se motion.
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Ramirez-Nino’s counsel filed her Anders brief on March 3, 2008. The defendant
has not submitted any additional arguments. Our conclusions, therefore, are
based on counsel’s Anders brief and our own review of the record.
“A defendant who knowingly and voluntarily pleads guilty waives all non-
jurisdictional challenges to his conviction.” United States v. Wright, 43 F.3d 491,
494 (10th Cir. 1994) (footnote omitted). In United States v. Hahn, 359 F.3d 1315,
1325 (10th Cir. 2004) (en banc), this court held it would enforce appellate
waivers so long as three conditions were met: (1) the matter on appeal falls within
the scope of the waiver; (2) the defendant knowingly and voluntarily waived his
appellate rights; and (3) enforcing the waiver will not result in a miscarriage of
justice. Pursuant to Anders, our review of the record demonstrates that Ramirez-
Nino knowingly and voluntarily pleaded guilty and the Hahn factors favor
enforcing the defendant’s waiver of appellate rights.
Even if Ramirez-Nino could appeal his conviction, the appeal contains no
arguably non-frivolous grounds. Ramirez-Nino, in his pro se filing in the district
court, alleged his counsel was ineffective for failing to request a continuance of
his sentencing hearing. The defendant argued the continuance was necessary to
allow his counsel to further investigate, inter alia, whether his Colorado
conviction for intimidating a witness could be challenged based on the court’s and
his Colorado lawyer’s failure to advise him of the deportation consequences of his
plea. Ramirez-Nino argued that if his motion to set aside his Colorado conviction
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was granted, his current conviction for unlawful reentry following a felony could
not be sustained. This argument is without merit on at least two grounds. First,
pursuant to Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), the
defendant’s prior felony convictions are sentencing enhancements, not an element
to be proved under 8 U.S.C. § 1326. Second, the failure to advise a defendant of
“the collateral consequences of possible deportation prior to the entry of a guilty
plea” cannot form the basis of relief. Valera v. Kaiser, 976 F.2d 1357, 1357 (10th
Cir. 1992); see also People v. Pozo, 746 P.2d 523, 526 (Colo. 1987) (“It is well
settled that a trial court is not required to advise a defendant sua sponte of
potential federal deportation consequences of a plea of guilty to a felony charge
when accepting such plea.”).
The only other possible basis for an appeal would relate to Ramirez-Nino’s
sentence. Our review of the record, however, reveals no other claims arguable on
their merits, and we accordingly conclude that Ramirez-Nino’s appeal is wholly
frivolous. Counsel’s motion to withdraw is granted and this appeal is dismissed.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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