                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                      UNITED STATES CO URT O F APPEALS
                                                                   November 6, 2007
                                                      Elisabeth A. Shumaker
                          FO R TH E TENTH CIRCUIT         Clerk of Court




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

                Plaintiff-Appellee,

    v.                                                    No. 07-2112
                                                   (D.C. No. 06-CR-1788-M V)
    M AN UEL M ON TIEL,                                    (D . N.M .)

                Defendant-Appellant.



                             OR D ER AND JUDGM ENT *


Before KELLY, PO RFILIO, and A ND ER SO N, Circuit Judges.




         M anuel M ontiel appeals his conviction on a jury verdict of possession with

intent to distribute 50 grams or more of methamphetamine. M r. M ontiel’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




*
       After examining the briefs and 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); 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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
counsel’s motion to withdraw and dismiss the appeal, see id. at 744 (directing

dismissal of appeal upon finding case “wholly frivolous”).

                                     Background

      On M ay 31, 2006, as he was driving on Interstate 25 in New M exico,

M r. M ontiel was stopped for speeding. In checking the law-enforcement

computer system to verify M r. M ontiel’s documents, the police officer learned

that the pickup truck was registered to M r. M ontiel and that his driver’s license

had been suspended. The officer also learned that M r. M ontiel’s vehicle had

passed through a checkpoint at the M exican border about tw o hours earlier.

W hen the officer asked M r. M ontiel if he had driven from M exico, he denied it

until confronted with the information to the contrary. Then M r. M ontiel said his

brother must have taken his truck into M exico, even though the driving time from

the checkpoint to the traffic-stop location was about tw o hours.

      At that point, M r. M ontiel suggested that the officer search his truck. A

drug dog was obtained and it alerted to the front of the truck. Officers then

discovered 348 grams of methamphetamine wrapped in cellophane and concealed

in the truck’s engine compartment. Further searching revealed a glass pipe of the

type used for ingesting methamphetamine in the truck bed and over $1800 in cash

on M r. M ontiel’s person. Laboratory testing of the substance found in the truck

showed that 87.7 grams of it w as pure methamphetamine.




                                          -2-
      M r. M ontiel was taken to the local sheriff’s department. Because the

facility did not have a cell for holding detainees, M r. M ontiel and an officer stood

in the hallway while another officer completed paperwork. During that time,

M r. M ontiel asked the officer, “W ho ratted on me?” R. Vol. 4, at 54. W hen told

that no one had, he said that he did not believe that because he had been stopped

before, but the items had not been found. Id.

      M r. M ontiel was charged with possession with intent to distribute 50 grams

or more of methamphetamine. Following a jury trial at which he did not testify,

he was convicted as charged. In this appeal, M r. M ontiel has responded to the

Anders brief, arguing that his attorney prevented him from testifying despite his

desire to do so and that his attorney provided ineffective assistance. 1 He also

seeks different appellate counsel.

                                      Discussion

      W e deny M r. M ontiel’s request for different appellate counsel. W e have

fully examined the proceedings as required by Anders and conclude that the

appeal is without merit. First, as counsel points out, the record shows that the

evidence was sufficient to sustain the guilty verdict. Second, both of

M r. M ontiel’s arguments are based on claims of ineffective assistance of counsel,

which should be brought in collateral proceedings, not on direct appeal.

1
       Counsel says M r. M ontiel does not want to appeal his sentence of 120
months’ incarceration to be followed by five years’ unsupervised release.
M r. M ontiel’s pro se brief does not challenge the sentence.

                                          -3-
      “To sustain a conviction for possession with intent to distribute, the

government must prove that (1) the defendant possessed the controlled substance;

(2) knew that he had it; and (3) possessed it with the intent to distribute it.”

United States v. Ramirez, 479 F.3d 1229, 1249 (10th Cir. 2007) (quotation

omitted), petition for cert. filed (U.S. Sept. 10, 2007) (No. 07-7189). “Possession

may be either active or constructive . . . .” United States v. Triana, 477 F.3d

1189, 1194 (10th Cir.) (quotation omitted), cert. denied, 127 S. Ct. 2928 (2007).

The government may show constructive possession “where the defendant has the

power to exercise control or dominion over the item” or has “an appreciable

ability to guide the destiny of the drug.” Ramirez, 479 F.3d at 1250 (quotations

omitted). “[A] jury may infer intent to distribute from the possession of large

quantities of drugs.” United States v. Pulido-Jacobo, 377 F.3d 1124, 1131 (10th

Cir. 2004). W e review the evidence de novo when evaluating its sufficiency,

“taking the evidence— both direct and circumstantial, together with the reasonable

inferences to be drawn therefrom— in the light most favorable to the

government.” Triana, 477 F.3d at 1194.

      W e first conclude that the evidence was sufficient to establish that

M r. M ontiel possessed the drugs and knew he possessed them. They were located

in a pickup truck registered to him that he was driving at the time of discovery,

and there was a drug pipe in the truck. M oreover, his statement to the police

officer that he did not believe that no one had alerted the authorities because he

                                           -4-
had avoided discovery before indicates that he knew the drugs were in his vehicle.

      W e further conclude that the evidence was sufficient to show that M r.

M ontiel intended to distribute the methamphetamine. The quantity of drugs was

sufficient for the jury to infer that he intended to distribute them. As a police

officer testified, the amount was far too much to be intended for personal use.

See R. Vol. 4 at 65 (“[n]ot even close” to being a personal-use amount). In

addition, the large amount of cash M r. M ontiel was carrying supported an

inference that he was in the drug-distribution business. See Minner v. Kerby, 30

F.3d 1311, 1316 (10th Cir. 1994) (stating “relatively large mount of cash”

supported finding that defendant intended to distribute drugs he possessed).

Accordingly, we agree with M r. M ontiel’s counsel that a challenge to the

sufficiency of the evidence is frivolous.

      W e turn to M r. M ontiel’s claims that his attorney prevented him from

testifying despite his desire to do so and that his attorney provided ineffective

assistance. W e have held that a right-to-testify claim is to be treated as an

ineffective-assistance-of-counsel claim. Cannon v. M ullin, 383 F.3d 1152, 1170

(10th Cir. 2004). Therefore, we conclude that all of the issues raised in M r.

M ontiel’s pro se brief concern the ineffective assistance of counsel, claims that

“should be brought in collateral proceedings rather than on direct appeal from a

conviction.” United States v. Brooks, 438 F.3d 1231, 1242 (10th Cir. 2006). This

is so “to ensure that we are provided with a developed factual record of the

                                            -5-
events.” Id. Consequently, we dismiss M r. M ontiel’s claims of ineffective

assistance of counsel. See id. (holding such claims “presumptively dismissible”)

(quotation omitted).

                                    Conclusion

      M r. M ontiel’s request for different counsel on appeal is DENIED. His

counsel’s motion to withdraw is GRANTED. His claims of ineffective assistance

of counsel are DISM ISSED because they were not properly brought in this direct

appeal. H is remaining claims are DISM ISSED as frivolous.


                                                   Entered for the Court



                                                   Paul J. Kelly, Jr.
                                                   Circuit Judge




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