                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 3 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

    v.                                                   No. 01-3134
                                                 (D.C. No. 00-CR-20036-KHV)
    ROGELIO VILLARREAL ROCHA,                             (D. Kansas)

                Defendant - Appellant.


                             ORDER AND JUDGMENT           *




Before TACHA , Chief Judge, ANDERSON , Circuit Judge, and          BRORBY ,
Senior Circuit Judge.



         After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

         Defendant Rogelio Villarreal Rocha was charged with one count of

possession with intent to distribute more than 500 grams of a mixture or substance


*
      This order and judgment is not binding precedent, except under the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 and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
containing cocaine (count I) and one count of possession with intent to distribute

more than 500 grams of a mixture or substance containing methamphetamine

(count II) in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Defendant

pleaded guilty to count I and was sentenced to a prison term of 175 months in

accordance with 21 U.S.C. § 841(b)(1)(B), which carries a maximum prison term

of forty years. Count II was dismissed on the motion of the United States.

      On appeal, defendant argues his sentence violates the rule in   Apprendi v.

New Jersey , 530 U.S. 466 (2000), in which the Court held any fact, other than the

fact of a prior conviction, used to increase the penalty for a crime beyond the

statutory maximum must be submitted to a jury and proved beyond a reasonable

doubt. Id. at 490. Defendant argues the district court erred by including the total

amount of drugs with which he was charged in count II in its calculation of the

total amount of drugs attributable to defendant for sentencing purposes.

      Defendant’s argument is without merit. The rule in      Apprendi “does not

apply to sentencing factors that increase a defendant’s guideline range but do not

increase the statutory maximum.”     United States v. Sullivan , 255 F.3d 1256, 1265

(10th Cir. 2001), cert. denied , 122 S. Ct. 1182 (2002). Defendant’s sentence of

175 months does not exceed the statutory maximum of forty years.

      Defendant also argues he received ineffective assistance of counsel

throughout the district court proceedings. Absent certain limited circumstances


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not present in this case, ineffective assistance of counsel claims should be

asserted in collateral proceedings, rather than on direct appeal.    See United States

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

       The judgment of the United States District Court for the District of Kansas

is AFFIRMED.


                                                         Entered for the Court



                                                         Deanell Reece Tacha
                                                         Chief Judge




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