                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           OCT 6 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 00-5126
                                                    (D.C. No. 00-CR-10-K)
    NATHANIEL P. HELM,                                   (N.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before TACHA, McKAY, and PORFILIO              , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

         Nathaniel Helm pleaded guilty to 18 U.S.C. § 924(c)(1)(A)(ii) (brandishing

a firearm in furtherance of a crime of violence) and 18 U.S.C. § 924(c)(1)(C)(i)


*
      This order and judgment is not binding precedent, except under the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.
(second or subsequent conviction under this section), for his participation in two

separate armed robberies, having been charged with accomplice liability under

18 U.S.C. § 2 in association with both robberies, as well as other charges. He

was sentenced to the statutory minimum for these two crimes: seven years under

the first § 924(c)(1)(A)(ii) conviction, and, pursuant to § 924(c)(1)(C)(i),

twenty-five years for the second conviction, to be served consecutively as

provided in § 925(c)(1)(D)(ii). In the first robbery, Mr. Helm brandished a 9mm

gun, while his accomplice brandished a sawed-off shotgun. R. Vol. III, Tr. of

Plea Hr’g at 20-21. In the second robbery, Mr. Helm and his accomplice planned

the robbery; Mr. Helm entered the store in advance of his accomplice and

pretended to be a shopper; Mr. Helm watched as his accomplice brandished a gun

and robbed the store; and, in furtherance of their plan, Mr. Helm stayed in the

store after the robbery and lied to the police to impede the investigation.    Id.

at 17-19.

       Mr. Helm’s plea agreement included an agreement not to directly appeal or

collaterally attack his convictions or sentences, except as to the issue of

ineffective assistance of counsel. In this appeal, he raises ineffective assistance

of counsel, as well as challenging the sufficiency of the evidence supporting his

plea of guilty to the weapons charge at the second robbery. His counsel has filed

a brief pursuant to Anders v. California , 386 U.S. 738 (1967), as to the


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substantive issue on appeal, and has moved to withdraw in light of Mr. Helm’s

claim of ineffective assistance of counsel. Mr. Helm filed a    pro se response brief,

outlining the two issues. The government filed a response brief and supplemental

appendix.

      Mr. Helm claims that his guilty plea to the § 924(c) charge with respect to

the second robbery, during which he did not carry a gun, was not sufficiently

supported by the evidence. This claim is without merit. Mr. Helm participated in

the planning for the robbery. He fulfilled his role in the plan by posing as a

customer in the store, observing the robbery which included the use of a gun, and

lying to the police, as planned, to divert the investigation of the robbery away

from his accomplice. Evidence of this conduct is sufficient to support a guilty

plea under 18 U.S.C. § 924(c).    See United States v. Wiseman , 172 F.3d 1196,

1217 (10th Cir.) (co-defendant’s display of weapon during robbery was sufficient

to support “use” of weapon during the robbery under § 924(c) under      Bailey v.

United States , 516 U.S. 137 (1995), thus providing sufficient evidence to convict

accomplice), cert. denied , 120 S. Ct. 211 (1999);   United States v. Bindley , 157

F.3d 1235, 1238 (10th Cir. 1998) (evidence was sufficient to show that defendant

“was involved in planning the crimes, he was contemporaneously aware of the

commission of the crimes, he knowingly and willfully performed numerous acts to

aid commission of the crimes, he acted with the intention of causing the crimes to


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be committed, and he knowingly and willfully performed acts after the crimes

were committed to avoid their detection”).

       Claims of ineffective assistance of counsel should be raised on collateral

review, rather than on direct appeal.   United States v. Galloway , 56 F.3d 1239,

1240 (10th Cir. 1995). Mr. Helm’s claim of ineffective assistance is hereby

dismissed without prejudice.

       Attorney J. Lance Hopkins’ amended motion to withdraw as counsel for

Mr. Helm is hereby GRANTED. The judgment of the United States District Court

for the Northern District of Oklahoma is AFFIRMED.



                                                     Entered for the Court



                                                     Monroe G. McKay
                                                     Circuit Judge




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