                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         APR 15 1999
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 98-2127
 v.
                                                 (D.C. No. CR 96-563 LH)
                                                 (District of New Mexico)
 RANDY ALLEN WILLINGER,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before BRORBY, EBEL and HENRY, Circuit Judges.




      Richard Willinger pled guilty to possession with intent to distribute more

than 100 grams of methamphetamine and aiding and abetting, in violation of 21

U.S.C. §§ 841(a)(1) and 841(b)(1)(A) and 18 U.S.C. § 2. In the plea agreement,

the United States agreed that the appropriate base offense level was 35, and that a



      *
        After examining appellant briefs and the 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) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
3-point reduction for acceptance of responsibility was warranted, resulting in a

base offense level of 32. In addition, the United States agreed that this case

called for a criminal history category between III and V, and that Willinger’s

sentence should not exceed 188 months imprisonment.

      At sentencing, the district court noted that Willinger had filed a number of

objections to the presentence report (PSR), and that those had been resolved

between Willinger’s counsel and the United States. Willinger’s attorney

confirmed that the parties had resolved the objections and that the parties had

confirmed the accuracy of the plea agreement with respect to the calculations

noted above. Accordingly, counsel advised the court that no evidentiary hearing

was needed. These statements were made in Willinger’s presence and he

thereafter addressed the court without objecting to his counsel’s statements. The

court then adopted the PSR without taking into consideration certain paragraphs

as agreed by the parties.

      On appeal, Willinger’s counsel submits what is essentially an Anders brief,

see Anders v. California, 386 U.S. 738 (1967), informing us of the following

claims Willinger wishes to raise: (1) that he was deprived of due process because

the district court sentenced him without a hearing after he objected to the findings

in the PSR; and (2) that his counsel was constitutionally ineffective for failing to

inform the court of Willinger’s intent to plead guilty “to the conduct of using


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drugs of a lower grade and amount with his girlfriend . . . at their home and not

for the economic gain conduct alleged at the 4th Street trailer.” Counsel also

informs us that Willinger “concedes the sentence received was not in excess of

the agreed amount in the plea agreement.”

      We reject Willinger’s claims. First, because his counsel resolved

objections to the PSR with the government and informed the court that no

evidentiary hearing was needed in light of such resolution, and because Willinger

himself raised no further objections at sentencing, we find his due process claim

devoid of merit. Second, we dismiss Willinger’s ineffective assistance claim,

which should be brought in collateral proceedings rather than on direct appeal.

See United States v. Galloway, 56 F.3d 1239, 1240, 1242 (10th Cir. 1995) (“The

rule in this circuit . . . is that claims of constitutionally ineffective counsel should

be brought on collateral review, in the first petition filed under 28 U.S.C.

§ 2255.”).

      The district court sentence is AFFIRMED.

      The mandate shall issue forthwith.

                                         ENTERED FOR THE COURT



                                         David M. Ebel
                                         Circuit Judge



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