                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         FEB 4 2003
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                       No. 01-3396
 v.                                           D.C. No. 00-CR-40095-02-RDR
                                                        (D. Kansas)
 ERIC LEE STEFFAN,

             Defendant - Appellant.


                          ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges. **


      Defendant-Appellant Eric Lee Steffan appeals from his conviction and

sentence. Mr. Steffan’s counsel filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), and moves for leave to withdraw as counsel. For the

reasons set out below, we grant counsel’s motion to withdraw and dismiss the

appeal.

      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
      Mr. Steffan pleaded guilty to conspiracy to possess with the intent to

distribute 500 grams or more of a mixture or substance containing

methamphetamine, in violation of 21 U.S.C. § 846. He was sentenced to 120

months’ imprisonment, to be followed by a five-year term of supervised release.

In this appeal, Mr. Steffan has responded to the Anders brief by filing a motion

seeking different appellate counsel. In that motion, he argues that (1) his guilty

plea was involuntary, (2) his sentence was improper, and (3) his counsel was

ineffective. We deny his request for different appellate counsel, but consider his

arguments in the context of this appeal.

      We have fully examined the proceedings as required by Anders and

conclude that the appeal is without merit. First, the record shows that Mr.

Steffan’s guilty plea was voluntary. We ordinarily review the question of whether

the plea agreement was entered knowingly and voluntarily de novo, see United

States v. Rubio, 231 F.3d 709, 712 (10th Cir. 2000), but review for plain error

where a defendant does not move to withdraw his guilty plea before the district

court. See Fed. R. Crim. P. 52(b); United States v. Vonn, 122 S. Ct. 1043, 1046

(2002); United States v. Schuh, 289 F.3d 968, 974 (7th Cir. 2002). The district

court informed Mr. Steffan in open court of the nature of the charge and the

maximum penalty (including the mandatory minimum which he received) and

instructed him as to the rights he was giving up by pleading guilty. See Aplt.


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App. at 22-46 (transcript of plea hearing); see also Fed. R. Crim. P. 11 (necessary

disclosures to insure a voluntary plea).

      Second, we have held that a district court can impose any sentence within

the applicable guideline range without entitling the defendant to withdraw the

guilty plea. United States v. Siedlik, 231 F.3d 744, 749 (10th Cir. 2000). In this

case, the district court’s sentence was neither contrary to law nor an incorrect

application of the sentencing guidelines; Mr. Steffan was sentenced at the low end

of the guideline range, consistent with the mandatory minimum. Mr. Steffan

appears to be claiming that the district court improperly relied upon “heresay

[sic]” in its determination that Mr. Steffan had 500 grams or more of

methamphetamine in his possession. Aplt. R. to Anders Br. at 1. To the extent

Mr. Steffan is rasing an evidentiary objection to the court’s finding, we reject his

argument on the ground that the rules of evidence do not apply to sentencing

hearings; the district court is allowed to consider all evidence that bears “a

minimum indicia of reliability.” United States v. Cruz Camacho, 137 F.3d 1220,

1225 (10th Cir. 1998). To the extent Mr. Steffan is arguing that his sentence is

improper because “there was [sic] no drugs in [his] possession,” Aplt. R. to

Anders Br. at 1, we review for plain error as no objection was made at the district

court. We note that a district court “may sentence the defendant based on the

total amount of drugs ‘which he reasonably foresaw or which fell within the scope


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of his particular agreement with the conspirators.’” Cruz Camacho, 137 F.3d at

1225 (quoting United States v. Ivy, 83 F.3d 1266, 1289 (10th Cir. 1996)). The

PSR contains sufficient evidence of the requisite quantity of methamphetamine

among Mr. Steffan and his co-conspirators.

      As to Mr. Steffan’s claims of ineffective assistance of counsel, we have

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.” United States

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

review the ineffective assistance claims here.

      AFFIRMED. Counsel’s request to withdraw is GRANTED.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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