                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES COURT O F APPEALS
                                                                       June 25, 2007
                                   TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                       Clerk of Court

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

          Plaintiff-Appellee,
 v.                                                     No. 05-6374
                                                  (D.C. No. 04-CR-179-R)
 DENNIS EM ERSON GONZALEZ,                              (W .D. Okla.)

          Defendant-Appellant.



                                OR DER AND JUDGM ENT *


Before K ELL Y, HOL LOW A Y , and GORSUCH, Circuit Judges.


      Dennis Emerson Gonzalez asks this court to reverse his conviction because

his defense attorney conceded M r. Gonzalez’s guilt during closing argument and

allegedly declined to include him in a chambers conference with the district court

judge, conduct he contends violated his Sixth Amendment right to effective

assistance of counsel, as well as his rights under Fed. R. Crim. P. 43 and the Due

Process Clause of the Fifth A mendment. M r. Gonzalez further asks us to reverse

his sentence on a single count where the term of sentence imposed by the district

court indisputably was in violation of law . Because M r. Gonzalez’s challenges to




      *
         This order is not binding precedent except under the doctrines of law of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.
his conviction implicate factual questions for which we have no record at this

time, and consonant with our existing jurisprudence, we defer them to collateral

proceedings. W e do, however, remand for re-sentencing on the sole count of

which M r. Gonzalez complains.

                                          ***

      After his arrest in the summer of 2003, Jason “Joker” Lujan cooperated with

an Oklahoma City Police Department narcotics investigation. M r. Lujan told the

police that, beginning in early 2002, several members of a Hispanic gang from

California, later identified as the Compton Varrio Tortilla Flats, moved to

Oklahoma City to set up a methamphetamine-dealing operation. M r. Lujan

explained to the police that the members of the group included “Boxer,” one of his

confederates later identified as M r. Gonzalez, who ran the operation from Florida;

“Lalo,” later identified as Eduardo Verduzco, who delivered the drugs to

O klahom a C ity at M r. G onzalez’s direction; and Jennifer Lujan, his sister-in-law ,

who distributed the methamphetamine in Oklahoma City with the assistance of M r.

Gonzalez’s girlfriend “M ousey,” later identified as M aria Ginez. W ith M r.

Lujan’s assistance, the police eventually seized over 2,800 grams of

methamphetamine from participants in the drug ring and obtained indictments

against twelve participants, including M r. Gonzalez. M ost of the defendants pled

guilty and cooperated w ith the government. Along with two associates, M r.




                                           -2-
Gonzalez – accused of being the group’s ringleader – pled not guilty and

proceeded to trial.

      In his opening statement before the jury, counsel for M r. Gonzalez, Charles

Kilgore, denied M r. Gonzalez’s involvement in “any kind of drug conspiracy.” Tr.

of Opening Stmt. at 27. The government, however, proceeded to present

substantial evidence of M r. Gonzalez’s guilt from more than a dozen cooperating

witnesses, as well as 16 law enforcement officers, agents, and employees. The

evidence at trial adduced that M r. Gonzalez left Oklahoma for Florida in February

2003, after one of the members of the drug organization was arrested. According

to testimony presented, M r. Gonzalez continued to direct from Florida the

California-to-Oklahoma drug operation, and, after his move, proceeds of various

drug transactions were wired to Florida.

      Responding to the proof presented by the government, M r. Kilgore took a

different tack in closing, admitting M r. Gonzalez’s involvement in the drug

conspiracy but seeking to diminish it by suggesting that he participated only until

February 2003, when he moved to Florida, and that M r. Verduzco was the true

ringleader. Thus, for example, M r. Kilgore told the jury that “I’m not going to ask

you to find [M r. G onzalez] not guilty on all of those counts, because if I did, I

think you’d probably tune me out from the very beginning and just go somew here

else.” Tr. of Closing Arg. (vol. 4) at 30-31. Likew ise, M r. Kilgore stated that M r.

Gonzalez’s “involvement stopped in February of 2003,” id. at 34, and that M r.

                                           -3-
Gonzales was “a lieutenant . . . working for Lalo,” id. at 35. And when discussing

the particular counts charged, M r. Kilgore submitted, for example, that “now,

Count 1 is the conspiracy. . . . W e’ll submit. . . . Dennis [Gonzalez] was

involved. . . . He wasn’t the head, but he was involved. But I will argue that he

was only involved . . . until he took off to Florida.” Id. at 67.

      After M r. Kilgore’s closing argument, the district court asked M r. Kilgore if

it should issue a conspiracy-w ithdrawal instruction to the jury. Id. at 75; see

D ocket Entry N o. 382 (instruction titled “AFFIRMATIVE DEFENSE OF

W ITHDRAW AL FROM A CONSPIRA CY”). 1 The government agreed with the

district court that such an instruction was appropriate. After reviewing the

proposed instruction overnight, however, M r. Kilgore declined the instruction, and



      1
          This proposed instruction stated, in pertinent part:

            Defendant Dennis Emerson Gonzalez asserts as a defense to
      each of the charges of conspiracy in Counts 1 and 29 . . . that he
      withdrew from the conspiracy in February of 2003.

             In this regard, you are instructed that withdrawal from the
      conspiracy is a defense to the acts and substantive counts . . .
      committed by one or more coconspirators after a defendant’s
      withdrawal for which that defendant would otherwise be liable or
      vicariously liable under these instructions. . . .

             If you find that Defendant Gonzalez has proved his affirmative
      defense of withdrawal from the conspiracy charged in Count 1 and/or
      in Count 29, then you must find Defendant Gonzalez not guilty of
      any acts or offenses committed by other members of that conspiracy
      after Defendant Gonzalez withdrew from the conspiracy unless he
      aided, abetted or caused such acts.

                                           -4-
the government did not request it. Tr. of Closing Arg. (vol. 4) at 106. The district

court then generally instructed the jury, including an instruction indicating the

vicarious liability of co-conspirators for the actions of others in the drug ring. See

D ocket Entry N o. 382 (instruction titled “VICARIOUS LIABILITY OF CO-

CONSPIRA TORS”). 2 Though there is no mention of it in the record before us, the

parties’ briefs represent that the district court also sought and held additional

meetings in chambers to discuss questions submitted by the jury. Apparently,

either during or shortly after one of these conferences, the district court made

some type of inquiry to M r. Kilgore regarding whether his client had agreed to his

change in tactics and concession of guilt. No transcript of the meeting seems to

exist but the government represents that M r. Kilgore said he altered his trial

tactics with M r. Gonzalez’s permission. M r. Gonzalez stresses that there is no

      2
          This instruction stated:

             Every conspirator is guilty of the illegal acts that are done as
      part of and in furtherance of the conspiracy even though those acts
      are done solely by co-conspirators. If you are satisfied beyond a
      reasonable doubt that, at the time an alleged offense was comm itted,
      a Defendant had entered into and continued to be a member of an
      unlawful conspiracy as charged in Count 1 and as I have defined that
      for you and if you further find beyond a reasonable doubt that the
      alleged acts charged in any of Counts 2, 3, 4, 5, 6, 7, 8, 10, 11, 12,
      14, 15, 16, 19, 21, 22, 26, 27, 29 and 30 through 79 were committed
      while the conspiracy continued to exist and in furtherance of that
      unlawful conspiracy or as an object of that conspiracy, then you may
      find that Defendant guilty of the offense or offenses charged in such
      count or counts even though he was not the person who actually
      committed or personally aided and abetted in the commission of that
      offense or those offenses.

                                          -5-
indication in the record to confirm the accuracy of this representation and denies

that he was ever informed of the pertinent chambers meeting or that he waived his

right to be present during this proceeding.

      Ultimately, the jury found M r. Gonzalez guilty of 63 of the 65 counts w ith

which he w as charged and, by means of a special verdict form, indicated that M r.

Gonzalez’s conspiracy involved more than 500 grams of methamphetamine.

See Docket Entry No. 385.

      At sentencing, the district court began its analysis with the advisory

Guidelines’ suggested sentencing range of ten years to life in prison and then

proceeded to review the various factors set forth in 18 U.S.C. § 3553(a); the

ultimate upshot: M r. Gonzalez was sentenced to 30 years on each of 12 separate

counts; 5 years each on 2 separate counts; 20 years each on 48 separate counts;

and 30 years on a single remaining count at issue in this appeal. The district court

indicated that its sentences w ould run concurrently, for a total of 30 years’

imprisonment.

                                         ***

      M r. Gonzalez, represented by new counsel on appeal, challenges his

conviction on the ground that the assistance he received from M r. Kilgore was so

deficient that it violated his Sixth Amendment right to counsel. Specifically, he

alleges that M r. Kilgore’s concession of guilt during closing argument; putative

failure to inform M r. Gonzalez of the chambers meeting or his right to be present;

                                          -6-
and failure to accept a conspiracy-withdrawal instruction all fell below the

requisite standard of care. In order to prevail on an ineffective assistance of

counsel claim, M r. Gonzalez must demonstrate that his “counsel’s representation

fell below an objective standard of reasonableness,” Strickland v. Washington, 466

U.S. 668, 688 (1984), and “that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different,” id. at 694; see also United States v. Taylor, 454 F.3d 1075, 1079 (10th

Cir. 2006) (applying Strickland). The threshold question we must address,

however, is whether M r. Gonzalez’s claim is best assessed on direct appeal or on

collateral review pursuant to 28 U.S.C. § 2255.

      W e view this initial question, moreover, through the prism of our decision

in United States v. Galloway, 56 F.3d 1239 (10th Cir. 1995) (en banc). There, we

held that “[i]neffective assistance of counsel claims should be brought in collateral

proceedings, not on direct appeal. Such claims brought on direct appeal are

presumptively dismissible, and virtually all will be dismissed.” Id. at 1240. The

rationale for our rule arises from the fact that a collateral proceeding affords the

parties the opportunity to develop a factual record through evidentiary hearings;

gives the allegedly ineffective attorney the opportunity to explain his reasons and

actions; and allows the district court, far better equipped than we for all this

evidence taking, to take a first crack at deciding the merits. At the same time,

however, in Galloway we anticipated that there may indeed be “rare instances”

                                           -7-
which permit direct review of ineffective assistance of trial counsel claims. Id.

But even so, we cautioned that “there is only a slight chance that we will forego

the development of a factual record or at least an opinion by the district court on

the subject in the first instance . . . [as] such a rule is inconsistent with the

overriding principle that virtually all claims – even those which might conceivably

be brought on direct appeal – should be brought in collateral proceedings.” Id. at

1241.

        Applying these considerations to this case, we conclude that M r. Gonzalez

has failed to rebut the exceedingly strong presumption against the immediate

consideration of his ineffective assistance claim. The critical transactions

surrounding M r. Gonzalez’s claim arise from a chambers meeting for which we do

not have a transcript and thus cannot know, among other things: Was M r.

Gonzalez informed of the meeting? D id he waive his right to attend? D id he

consent to M r. Kilgore’s concession of guilt? W hat were the reasons for M r.

Kilgore’s rejection of a withdrawal instruction? W e may surmise and speculate,

but we have no firm facts at hand to answ er any of these, and other, unavoidable

and potentially dispositive questions. By contrast, a district court in collateral

proceedings is well equipped to take evidence from all relevant witnesses, assess

the credibility of each, and make factual findings on all these scores. W ithout

development of such a factual record, we simply cannot sensibly evaluate M r.

Gonzalez’s claim.

                                            -8-
      M r. Gonzalez responds that an admission by counsel of his or her client’s

guilt to the jury represents the paradigmatic example of incompetent counseling

and requires no further factual findings, citing to our decision in United States v.

Williamson, 53 F.3d 1500, 1511 (10th Cir. 1995). But to state a claim for

ineffective assistance of counsel under the Sixth Amendment, a claimant must

show, first, that counsel’s conduct was deficient – overcoming the twin

presumptions that the attorney was acting within the “wide range” of reasonable

professional assistance and that his or her challenged conduct might be considered

sound trial strategy, Strickland, 466 U .S. at 689 – and, second, the claimant must

also show that he suffered prejudice from counsel’s deficient conduct. In

Williamson, we merely held that the latter of these two tests, concerning prejudice,

is presumptively (though not still definitively 3 ) satisfied w hen counsel confesses a

client’s guilt before the jury. 53 F.3d at 1511. And, as we have already explained,

the first test – whether counsel’s conduct was deficient – can only be fairly settled

after the collection and assessment of a great many facts not in the record before

us. Indeed, Williamson itself took up the Sixth Amendment question on direct

      3
         W e held that in order to determine whether such a prejudicial admission
actually occurred, the focus must still remain on the factual question “whether, in
light of the entire record, the attorney remained a legal advocate of the defendant
who acted with undivided allegiance and faithful, devoted service to the
defendant.” Williamson, 53 F.3d at 1511 (internal quotation marks omitted).
Thus, counsel’s admission that his client was a drug user who bought from and
associated with known drug dealers, where he also argued that there was no
evidence that she was a coconspirator, did not constitute an admission of guilt
leading to the presumption of prejudice. Id.

                                          -9-
appeal (deciding it adversely to the defendant) only because, quite unlike here,

consideration of the claim in that case could be fairly made by reference to matters

contained in the existing trial record. 53 F.3d at 1510 n.3. 4

      In a supplemental opening brief to this court, M r. Gonzalez argues that,

whatever the disposition of his Sixth Amendment ineffective assistance claim, he

was also denied the opportunity afforded him by Rule 43 of the Federal Rules of

Criminal Procedure and the Due Process Clause of the Fifth Amendment to be

present in the chambers conference. But Rule 43 expressly indicates that the

accused need not be present at “proceeding[s] involv[ing] only a conference or

hearing on a question of law,” Fed. R. Crim. P. 43(b)(3), and M r. Gonzalez does

not argue that due process extends to such conferences or hearings, see United

States v. Gagnon, 470 U .S. 522, 526 (1985) (“[A ] defendant has a due process

right to be present at a proceeding whenever his presence has a relation,

      4
          Our only misgiving about the course we take today is the practical matter
that M r. Gonzalez is very ably represented by the public defender in this appeal
by dint of his right to counsel under the Sixth Amendment, and he is not
guaranteed such representation during a Section 2255 proceeding. See United
States v. Snitz, 342 F.3d 1154, 1158 (10th Cir. 2003) (“[T]he right to counsel
extends to appeal but not collateral review.”). But this worry does not lack for a
solution as the district court can afford M r. Gonzalez counsel on collateral review
in appropriate circumstances. In fact, should the district court determine that an
evidentiary hearing is warranted, federal rules provide that “the judge must
appoint an attorney to represent a moving party who qualifies to have counsel
appointed under 18 U.S.C. § 3006A.” Rule 8(c) of the Rules Governing Section
2255 Proceedings for the United States District Courts (emphasis added). Neither
does anything prohibit the district court from appointing counsel at an even
earlier stage. Id. (“These rules do not limit the appointment of counsel under
§ 3006A at any stage of the proceeding.”).

                                          -10-
reasonably substantial . . . to defend against the charge. The presence of a

defendant is a condition of due process to the extent that a fair and just hearing

would be thwarted by his absence, and to that extent only.” (internal quotation and

alterations omitted)); accord United States v. Santiago, 977 F.2d 517, 522 (10th

Cir. 1992). Likewise, the rights afforded by Rule 43 and due process can be

waived with the consent of the accused. See Gagnon, 470 U.S. at 528-29; United

States v. Edmonson, 962 F.2d 1535, 1543 (10th Cir. 1992) (citing Diaz v. United

States, 223 U.S. 442, 445 (1912)); Larson v. Tansy, 911 F.2d 392, 396-97 (10th

Cir. 1990). The parties before us disagree sharply over w hether the chambers

conference at issue concerned only questions of law as opposed to fact, as well as

when and in what capacity the district court’s inquiry to M r. Kilgore arose. It is

further unknown whether M r. G onzalez did or did not w aive his right to attend.

A ccordingly, like M r. G onzalez’s ineffective assistance of counsel claim, we

conclude his argument regarding a possible violation of Rule 43 and due process is

better resolved in a Section 2255 proceeding where evidence on these critical and

contested factual questions can be taken.

                                         ***

      Finally, M r. Gonzalez challenges a single aspect of his sentence, arguing

that the district court erred by imposing a 30-year sentence on Count 29, involving

a violation of 18 U.S.C. § 1956(h), conspiracy to comm it money laundering. The

government concedes the error and the parties agree that the maximum sentence

                                          -11-
available for this offense is 20 years. See 18 U.S.C. § 1956(a)(2). The parties also

agree that, despite this error, M r. Gonzalez was lawfully sentenced to 30 years on

no fewer than twelve other counts, 5 all of which were to run concurrently with the

sentence for Count 29, and thus M r. Gonzalez will be obliged to serve that full

term of incarceration regardless of the outcome of this sentencing appeal.

      W hile M r. Gonzalez did not object to the imposition of the sentence before

the district court and we therefore must review under the plain error standard, see

United States v. Lott, 310 F.3d 1231, 1239-40 (10th Cir. 2002), we have (albeit in

circumstances involving more obvious prejudice than here, where M r. Gonzalez

will be serving a 30 year prison term anyway) previously held that the imposition

of an illegal sentence generally constitutes plain error. United States v. Brooks,

438 F.3d 1231, 1242 (10th Cir. 2006) (citing United States v. Vance, 868 F.2d

1167, 1169 (10th Cir. 1989), abrogated in part on other grounds by Hughey v.




      5
         The other counts and charges are as follows: Count 1, conspiracy to
possess with intent to distribute and distribute 500 grams or more of
methamphetamine, 21 U.S.C. § 846; Count 5, possession with intent to distribute
50 grams or more of a substance containing methamphetamine, 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 2; Counts 6, 7, 11, and 15, distribution of 50 grams
or more of a substance containing methamphetamine, 21 U.S.C. § 841(a)(1) and
18 U.S.C. § 2; Counts 10 and 14, possession with intent to distribute 500 grams or
more of methamphetamine, 21 U.S.C. § 841(a)(1); Counts 19 and 27, possession
with intent to distribute 500 grams or more of methamphetamine and aiding and
abetting, 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and Counts 21 and 26,
distribution of 500 grams or more of methamphetamine, 21 U.S.C. § 841(a)(1).

                                         -12-
United States, 495 U.S. 411 (1990)). 6 It is on this basis that we reverse the

sentence on Count 29 and remand for the district court to impose a new sentence

on that count no longer than the statutory maximum of 20 years. 7

                                         ***

      M r. Gonzalez’s conviction is affirmed and his sentence with respect to

Count 29 alone is vacated and the matter is remanded for re-sentencing consistent

with this order and judgment.



                                        ENTERED FOR THE COURT



                                        Neil M . Gorsuch
                                        Circuit Judge




      6
         An “illegal sentence” is one “where the term of incarceration exceeds the
statutory maximum.” United States v. Gonzalez-Huerta, 403 F.3d 727, 739 n.10
(10th Cir. 2005) (en banc).
      7
         Because it was not fully developed in this case, we expressly leave open
the question whether, consistent with Brooks and Vance, an illegal sentence
imposing no prejudice on defendant – because it is purely concurrent with a
law ful sentence and imposes no collateral consequences – may not constitute
plain error. See United States v. Phipps, 319 F.3d 177, 192 (5th Cir. 2003);
United States v. M eshack, 225 F.3d 556, 577 (5th Cir. 2000), as modified, 244
F.3d 367 (5th Cir. 2001), cert. denied, 534 U.S. 861 (2001); United States v.
M cCarter, 406 F.3d 460, 464 (7th Cir. 2005).

                                         -13-
