Alien convicted of illegal reentry may not challenge prior aggravated felony conviction used to enhance sentence

SENTENCING/APPEAL United States v. Delacruz-Soto, No. 04-2086, ___ F.3d ___ (10th Cir. Jul. 12, 2005)(New Mexico). Appeal of sentence for conviction of illegal reentry to United States after deportation in violation of 8 U.S.C. § 1326(a)(1)&(2) and (b)(2). HELD: Defendants convicted under 8 U.S.C. § 1326 may not challenge prior aggravated felony conviction used to enhance penalties under § 1326(b)(2) except on grounds that Defendant was denied counsel in that prior proceeding. NOTE: In this case, attorney for defendant filed Anders brief with court seeking to withdraw from case by claiming appeal was frivolous. Court permitted counsel to withdraw, but later found that counsel had not designated all portions of record necessary for court to conduct its own independent review of the record as required by Anders v. California, 386 U.S. 738 (1967) and Entsminger v. Iowa, 386 U.S. 748 (1967)(i.e., transcripts of guilty plea and sentencing hearings). As a result, the court issued the following warning to counsel: In the future, we may deny counsel’s Anders brief and motion to withdraw unless counsel ensures that we have an adequate record before us to satisfy both counsel’s obligation to his or her client and our appellate review obligation under Anders and Entsminger. Read the opinion here.