                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                       April 11, 2008
                    UNITED STATES COURT OF APPEALS
                                                                   Elisabeth A. Shumaker
                                                                       Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 06-6191
          v.                                           (W.D. Oklahoma)
 DARRELL W. COLLINS, also known                   (D.C. No. CR-99-216-2-M)
 as Fat Boy,

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and MURPHY, Circuit Judges.



I.    INTRODUCTION

      Defendant Darrell W. Collins was convicted after a jury trial of numerous

drug-related crimes and sentenced to 360 months’ imprisonment. His convictions

were affirmed on direct appeal, but his sentence was reversed. United States v.

Tyler, 42 F. App’x 186, 200 (10th Cir. 2002). On remand, the district court

concluded Collins was properly sentenced as a career offender and again imposed



      *
        This order and judgment is not binding precedent except under the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.
a 360-month sentence. U.S.S.G. § 4B1.1. Collins was resentenced a third time

after he successfully argued in a 28 U.S.C. § 2255 motion that his counsel on

remand was ineffective for failing to file a direct appeal. The district court once

again used the career offender guideline to calculate Collins’s advisory guidelines

range but granted him a variance and imposed a sentence of 300 months. Collins

then filed this appeal, asserting the district court improperly applied the career

offender sentencing guideline and gave an erroneous jury instruction that

impacted his sentence. He also asserts a claim of ineffective assistance of

counsel. Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a), we affirm Collins’s sentence.

II.   BACKGROUND

      Collins was charged in a multi-count indictment with crimes related to his

participation in a cocaine distribution conspiracy. Tyler, 42 F. App’x at 189.

Collins was convicted by a jury of all nine charges lodged against him and

sentenced on October 4, 2000. The district court concluded Collins’s prior

conviction for second-degree burglary was a crime of violence and, thus, a

predicate offense that qualified Collins to be sentenced as a career offender

pursuant to § 4B1.1 of the Sentencing Guidelines. Id. at 199. Collins appealed

his convictions, arguing the district court erroneously denied his motion seeking

to suppress tape recorded telephone conversations and improperly permitted a

witness to testify about his previous drug activities. Id. at 194-95, 196-97. He

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also challenged his 360-month sentence. Id. at 198-99. This court affirmed

Collins’s convictions but reversed his sentence, holding the Government failed to

carry its burden of proving Collins’s prior burglary conviction was a crime of

violence for purposes of the career offender guideline. Id. at 200.

      Collins was resentenced on September 6, 2002. In accord with our prior

ruling, the Government introduced an affidavit signed by Collins in connection

with his prior state conviction for second-degree burglary indicating that offense

was directed at a dwelling. Collins stipulated that the affidavit was sufficient to

prove the burglary conviction involved a dwelling. Based on Collins’s stipulation

and the Government’s affidavit, the district court again applied the § 4B1.1 career

offender provision and again sentenced Collins to 360 months’ imprisonment.

      Collins did not file a timely direct appeal. He did, however, file a pro se

motion pursuant to 28 U.S.C. § 2255, raising numerous ineffective assistance of

counsel claims. The district court granted the motion based on Collins’s claim

that his counsel failed to file a direct appeal after the resentencing. See United

States v. Davis, 929 F.2d 554, 557 (10th Cir. 1991) (“A defendant is denied

effective assistance of counsel if he asks his lawyer to perfect an appeal and the

lawyer fails to do so by failing to file a brief, a statement of appeal, or

otherwise.” (quotation and alteration omitted)).

      Collins was sentenced for the third time on May 16, 2006, more than a year

after the Supreme Court’s decision in United States v Booker, 543 U.S. 220

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(2005). At the sentencing hearing, his counsel challenged the calculation of

Collins’s now-advisory guidelines range by arguing Collins’s prior second-degree

burglary conviction could be not used as a basis for applying the career offender

guideline because Collins was not eighteen years old when he committed the

offense. See U.S.S.G. § 4B1.2 cmt. n.1 (defining a prior adult felony conviction

as “an offense committed at age eighteen or older” or an offense “classified as an

adult conviction under the laws of the jurisdiction in which the defendant was

convicted”). Collins’s counsel, however, admitted to the district court that

Collins had been certified as an adult. The court noted the applicability of

U.S.S.G. § 4B1.2 cmt. n.1 which indicates offenses committed prior to a

defendant’s eighteenth birthday are classified as adult convictions if the defendant

was proceeded against as an adult. The court applied the career offender

guideline, but took Collins’s age into consideration when it evaluated the 18

U.S.C. § 3553(a) sentencing factors. After incorporating its prior findings and

rulings, the court sentenced Collins to 300 months’ imprisonment. Collins then

filed this direct appeal.

III.   DISCUSSION

       Collins makes two Sixth Amendment arguments with respect to the drug

types and quantities used to calculate his advisory guidelines range. He argues

the district court erroneously instructed the jury that all references to controlled

substances in the jury instructions meant crack cocaine. Accordingly, he asserts

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the jury did not properly find drug quantities beyond a reasonable doubt. He also

appears to argue that the district court was precluded by the Sixth Amendment

from making findings of drug quantity when it determined his advisory guidelines

range.

         Collins’s drug-quantity arguments are clearly precluded by both the

remedial holding in Booker and our subsequent precedent. “Because the post-

Booker Guidelines are discretionary, a district court may continue to find facts,

including drug quantity, by a preponderance of the evidence.” United States v.

Hall, 473 F.3d 1295, 1312 (10th Cir. 2007). Thus, the alleged error in the jury

instructions had no effect on Collins’s sentence. Further, the district court

applied the Guidelines in a discretionary fashion when it resentenced Collins.

Under those circumstances, the Sixth Amendment was not implicated by the

court’s findings related to drug quantity. See United States v. Rodriguez-Felix,

450 F.3d 1117, 1130 (10th Cir. 2006) (“After Booker, a constitutional violation

lies only where a district court uses judge-found facts to enhance a defendant’s

sentence mandatorily under the [Guidelines], and not where a court merely

applies such facts in a discretionary manner.”); see also United States v.

Magallanez, 408 F.3d 672, 685 (10th Cir. 2005) (holding a district court may

continue to find facts, including drug quantities that differ from jury findings, by

a preponderance of the evidence).




                                          -5-
      Collins also makes two arguments related to the district court’s application

of the career offender guideline. He first argues the guideline does not apply

because he was seventeen years old when the second-degree burglary crime was

committed and the Government failed to prove that he was certified as an adult.

See U.S.S.G. § 4B1.2 cmt. n.1. The fatal flaw with this argument is that Collins’s

counsel admitted to the district court during the resentencing hearing that he was

certified as an adult in the prior proceeding. Collins seeks to overcome this

obstacle by arguing he was deprived of his constitutional right to effective

assistance of counsel because his attorney failed to investigate whether he had

been certified as an adult. Relying on a document not presented to the district

court and not properly part of the appellate record, Collins asserts he was never

certified as an adult and his counsel’s admission to the contrary was “false.” The

Government argues that Collins cannot show he was prejudiced by counsel’s

alleged deficient performance because he was, in fact, certified as an adult in the

prior proceeding. See Strickland v. Washington, 466 U.S. 668, 688, 692 (1984)

(holding a defendant cannot prevail on a claim of ineffective assistance of counsel

unless he can demonstrate counsel’s representation fell below an objective

standard of reasonableness and he was prejudiced by counsel’s performance.).

Like Collins, the Government bases its argument on a document appended to its

brief that is not part of the appellate record.




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      Because the record is not sufficiently developed, Collins’s ineffective

assistance claim cannot be resolved in this direct appeal. United States v. Brooks,

438 F.3d 1231, 1242 (10th Cir. 2006). His claim should first be presented to the

district court in a collateral proceeding. United States v. Galloway, 56 F.3d 1239,

1240 (10th Cir. 1995).

IV.   CONCLUSION

      For the reasons stated above, Collins’s ineffective assistance claim is

dismissed. His sentence is affirmed.

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




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