                                                                         F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                    November 2, 2006
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,                      No. 05-8101
          v.                                            (D . of W yo.)
 C HRISTO PH ER BLA S PA D ILLA,                  (D.C. No. 05-CR-148-D)

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges. **


      Pursuant to a plea agreement, Defendant-Appellant Christopher Padilla was

convicted of conspiracy to possess methamphetamine with intent to distribute in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846. He now appeals his

76-month sentence, alleging ineffective assistance of counsel. For the reasons

stated below, we AFFIRM .




      *
         This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order 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); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
                                 I. Background

      Padilla was arrested on M arch 28, 2005. The complaint against him

contained four counts: (1) conspiracy to possess with intent to distribute

methamphetamine; (2) actual distribution of methamphetamine; (3) actual

distribution of cocaine; and (4) using a controlled substance unlaw fully while in

possession of a firearm. After waiving his right to a preliminary hearing and a

speedy trial, Padilla, with the assistance of counsel, entered into plea negotiations

with the Government. On July 13, 2005, Padilla and the Government filed a plea

agreement stipulating that Padilla would plead guilty only to the conspiracy

charge. The agreement further stipulated that Padilla would agree to a two-level

enhancement of his offense level for the crime and that the Government would

recommend a sentence at the low end of the advisory Guideline range. Padilla

entered this plea in the face of uncertainty regarding his criminal history level. In

particular, he w as unsure at the time of his plea w hether his criminal history

category would be I, II or III. The district court informed him of the impact this

could have on his eventual sentence.

      The presentence report assigned Padilla a criminal history category of III.

Combined with his offense level of 25 this yielded an advisory sentencing range

of 70 to 87 months incarceration. Padilla filed a motion for downward departure,

arguing that the presentence report overstated his criminal history. The district

court denied the motion and sentenced Padilla to 76 months.

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      Padilla filed a timely notice of appeal, arguing the sentence was

unreasonable and that he received ineffective assistance of counsel. Believing

this appeal frivolous, Padilla’s counsel, Richard Jamison, filed a brief along with

a motion to withdraw under Anders v. California, 386 U.S. 738 (1967).

                                 II. Discussion

A. Sentencing Error

      Padilla’s first contention is that the district court erred in sentencing him to

76 months despite the parties’ stipulated recommendation for a sentence of 70

months. 2 W e construe this as an argument that the sentence is unreasonable under

United States v. Booker, 543 U.S. 220 (2005) and 18 U.S.C. § 3553(a).

      A sentence within a correctly calculated Guideline range is entitled to a

presumption of reasonableness. United States v. Kristl, 437 F.3d 1050, 1054–55

(10th Cir. 2006). “The defendant may rebut this presumption by demonstrating

that the sentence is unreasonable in light of the . . . sentencing factors laid out in




      2
        Padilla also argues that the district court erred when it denied his motion
for a downward departure. This argument is without merit. Before United States
v. Booker, 543 U.S. 220 (2005), this court did not review a district court’s
decision to deny a downward departure except where the district court clearly
believed itself legally precluded from doing so. See United States v. Fortier, 180
F.3d 1217, 1231 (10th Cir. 1999). This made sense in the era of the mandatory
Guidelines and is arguably superfluous now that the Guidelines are advisory and
all sentences are subject to review for reasonableness. Nonetheless, the district
court in this case made clear it had discretion to grant Padilla’s motion for
downward departure and we therefore have no basis to review this outside the
overall context of reasonableness.

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§ 3553(a).” Id. at 1055. The district court correctly calculated the applicable

Guideline range given Padilla’s criminal history category and offense level. The

court’s sentence, while not the sentence recommended by Padilla and the

Government, nonetheless fell within the advisory Guideline range. It is therefore

entitled to a presumption of reasonableness. Id. at 1054–55. On appeal, Padilla

has provided no basis upon which this presumption should be questioned, let

alone rebutted. In addition to his attorney’s Anders brief, Padilla has submitted

only a four-page statement arguing the ineffectiveness of his counsel. Because

Padilla’s sentence is presumptively reasonable and because Padilla has not

rebutted this presumption, we conclude that the sentence imposed was reasonable.

B. Ineffective Assistance of Counsel

      Padilla next argues that Jamison provided him ineffective assistance and

this resulted in his unsatisfactory plea bargain and sentence. The Supreme Court

has noted that “[i]n light of the way our system has developed, in most cases a

motion [for habeas corpus] brought under § 2255 is preferable to direct appeal for

deciding claims of ineffective assistance.” M assaro v. United States, 538 U.S.

500, 504 (2003). This is because the pursuit of an ineffective assistance claim on

direct appeal requires the appellate court to proceed on a trial court record not

developed with the object of proving ineffective assistance in mind. This concern

animated our holding that “[i]neffective assistance of counsel claims ‘should be

brought in collateral proceedings, not on direct appeal. Such claims brought on

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direct appeal are presumptively dismissible, and virtually all will be dismissed.’”

United States v. Calderon, 428 F.3d 928, 931 (10th Cir. 2005) (quoting United

States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995)).

       Padilla bases his argument for ineffective assistance on Jamison’s failure to

“present the two key witnesses in [sic] Defendants [sic] behalf that Defendant had

two notarized statements from. . . .” Aplt. Br. at 1. These statements are alleged

to be those of cellmates of prisoners with knowledge of a plot by associates of

Padilla to have the charges against Padilla trumped-up by offering false testimony

to prosecutors about Padilla’s use of a firearm in the collection of drug debts.

Even assuming the accuracy and persuasiveness of these statements, Padilla’s

ineffective assistance claim raises precisely the concerns about record

development articulated by the Supreme Court in M assaro. W hile “[t]here may

be cases in which trial counsel’s ineffectiveness is so apparent from the record”

that such concerns are not borne out, this is not such a case. M assaro, 538 U.S. at

508.

                                   III. Conclusion

       For the foregoing reasons, we AFFIRM the district court and GRANT

Jam ison’s motion to w ithdraw .

                                                     Entered for the Court


                                                     Timothy M . Tymkovich
                                                     Circuit Judge

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