                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 12 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                  Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 03-1317
                                                   (D.C. Nos. 03-M-980 and
    ABEL SAENZ,                                         99-CR-317-M)
                                                          (D. Colo.)
                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before EBEL , ANDERSON , and BRISCOE , Circuit Judge.



         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.

         Defendant Abel Saenz, a federal prisoner appearing pro se, appeals the

district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or



*
      This order and judgment is not binding precedent, except under the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.
correct his sentence. Saenz contends that the district court erred in ruling that his

issues had been raised and decided on direct appeal. This court granted an

application for a certificate of appealability and we now affirm in part and reverse

in part.

                                             I.

       Saenz and three co-defendants were charged with federal drug crimes.

Saenz entered into a plea agreement under which he pled guilty to conspiracy to

distribute or possess with intent to distribute 500 or more grams of cocaine. The

plea agreement indicated that, under the tentative computation of his criminal

history, the estimated offense level could result in a sentencing range of 46 to 115

months and that the career criminal offender adjustment under USSG § 4B1.1 did

not apply.   1
                 The agreement also stated that it was “not conditioned on the

defendant being in a particular history category,” R., Vol. 1, Doc. 69 at 8; that the

United States Probation Office would “further investigate [defendant’s] criminal




1
       USSG § 4B1.1(a) provides that:

       A defendant is a career offender if (1) the defendant was at least
       eighteen years old at the time the defendant committed the instant
       offense of conviction; (2) the instant offense of conviction is a felony
       that is either a crime of violence or a controlled substance offense;
       and (3) the defendant has at least two prior felony convictions of
       either a crime of violence or a controlled substance offense.

                                            -2-
history,” id. at 7; and that the court “may impose any sentence, up to the statutory

maximum,” id.

      In preparing its presentence report, the probation department discovered

a New Mexico felony drug conviction, which together with two already-known

Colorado felony drug convictions, triggered the operation of the career-offender

enhancement provisions of USSG § 4B1.1. Based on this discovery, the

presentence report recommended the classification of Saenz as a career offender

and a corresponding sentencing range of 188 to 235 months. The government

advocated application of the revised calculation.

      The proposed increase in sentencing range led to a series of hearings. At

the first hearing, Saenz did not formally seek to withdraw his guilty plea, but he

asserted that the government should be compelled to comply with the sentencing

range stated in the plea agreement. At Saenz’s request, his attorney moved to

withdraw from the case. The court continued the sentencing proceeding so that

the probation department could gather more information about Saenz’s criminal

history. During a second hearing, the court granted the attorney’s motion to

withdraw and again continued the proceedings, this time to allow Saenz to obtain

replacement counsel. At the final sentencing hearing, Saenz’s new attorney asked

to withdraw the guilty plea. The court denied the motion and, after allowing for




                                         -3-
a downward departure for substantial assistance, sentenced Saenz to 159 months’

imprisonment.

       Saenz filed a direct appeal. He argued that he should have been permitted

to withdraw his plea because the government violated the agreement when it

“agreed with the probation department’s recommendation that he in fact be

sentenced as a career offender.”      United States v. Saenz , 10 Fed. Appx. 701, 707

(10th Cir. May 8, 2001) (unpublished). In evaluating the district court’s denial of

the motion, this court looked at seven factors, including “‘whether the plea was

knowing and voluntary’” and “‘the quality of the defendant’s assistance of

counsel.’” Id. at 707-08 (quoting United States v. Siedlik , 231 F.3d 744, 749

(10th Cir. 2000)).   2
                         This court decided that none of the factors favored allowing

withdrawal of the plea and found no abuse of discretion in the district court’s

denial of the motion.      Id. at 708. Specifically, we determined that “the plea was

knowing and voluntary, in the sense that Mr. Saenz had read and understood its

terms and was not coerced into making it.”          Id. With regard to counsel’s advice


2
       The remaining factors reviewed by the court were:

       “(1) whether the defendant asserted his innocence; (2) whether the
       government will be prejudiced if the motion is granted; (3) whether
       the defendant has delayed in filing the motion; (4) the inconvenience
       to the court if the motion is granted; . . . and [(5)] whether the
       granting of the motion would cause a waste of judicial resources.”

Id. at 707-08 (quoting      Siedlik , 231 F.3d at 749).

                                              -4-
about a potential sentence, we specifically noted that “although Mr. Saenz asked

to have his first attorney released, there is no evidence that he was ineffective in

any way.” Id.

       Saenz then filed his § 2255 motion. In a brief order, the district court

denied the motion on procedural grounds, without reaching the underlying

constitutional claims. The denial was based on a determination that the motion

was “another attempt to litigate the same issues that were resolved” in the direct

appeal. R., Vol. 2, Doc. 192. This appeal followed. Since Saenz raises only

questions of law, we review the district court’s order de novo.     United States v.

Mora, 293 F.3d 1213, 1216 (10th Cir.),     cert. denied , 537 U.S. 961 (2002).


                                            II.

       A defendant may not assert issues in a § 2255 motion which have been

considered on direct appeal.    United States v. Warner,    23 F.3d 287, 291 (10th Cir.

1994). 3 We therefore examine each of Saenz’s claims to determine if the district

court was correct in deciding that it had been previously resolved. We note,

however, that many of Saenz’s § 2255 claims rely on allegations of ineffective

assistance of counsel. The general rule is that this court addresses ineffective



3
       An exception to the rule, not applicable in the instant case, occurs when
there has been an intervening change of law.   Warner, 23 F.3d at 291 (citing
United States v. Prichard , 875 F.2d 789, 791 (10th Cir. 1989)).

                                            -5-
assistance of counsel claims in collateral proceedings, not on direct appeal.

United States v. Montoan-Herrera      , 351 F.3d 462, 465 (10th Cir. 2003) (citing

United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc)).

Only in “rare instances” does an ineffective assistance of counsel claim “need

no further development prior to review on direct appeal.”     Galloway , 56 F.3d

at 1240. The “exception to the rule exists when ‘the record is sufficient, or where

the claim simply does not merit further factual inquiry.’”    Montoan-Herrera ,

351 F.3d at 465 (quoting    United States v. Gordon , 4 F.3d 1567, 1570 (10th Cir.

1993)).

       Saenz’s primary assertion, set out most fully in his first claim, is that he

entered into an involuntary guilty plea as the result of (1) misleading statements

by the court, the government, and counsel on the severity of the sentence he

would receive upon his guilty plea; (2) his inability to use and understand

English, coupled with his attorney’s lack of Spanish-speaking capability; and

(3) ineffective assistance of trial counsel. On direct appeal, the record was

sufficient for us to reject Saenz’s assertion that he was misinformed or misled

about the length of his prospective sentence. The district court correctly ruled

that Saenz may not resurrect this theory.

       However, additional aspects of Saenz’s initial claim are raised for the first

time in his § 2255 motion. Saenz claims that his difficulty with the English


                                            -6-
language prevented his understanding of the proceedings. He also contends that

his counsel was constitutionally ineffective in ways unrelated to the length of the

sentence: incorrect guidance on the reversibility of the plea agreement; failure to

investigate, research, or discuss the relevant facts and law; and concurrent

representation of a co-defendant. None of these issues could have been resolved

upon the record compiled on direct appeal. We therefore remand these portions

of the first claim, and similar assertions set out in the second and fifth claims, for

further development of the record and a dispositive ruling.

       Saenz’s motion also asserts two interrelated claims for relief that were not

addressed on direct appeal, but nevertheless may be decided in this § 2255 appeal

without further factual inquiry. In claims three and four, Saenz asks this court to

set aside one of the Colorado state convictions which entered into his criminal

history calculation or, alternatively, abate his § 2255 action while he collaterally

attacks the conviction in state court. A defendant may challenge a previous

conviction in a later sentencing proceeding only by showing “a jurisdictional

defect resulting from the failure to appoint counsel at all.”   Custis v. United

States , 511 U.S. 485, 496 (1994). Other constitutional errors, including “claims

of ineffective assistance of counsel” and “failure to assure that a guilty plea was

voluntary,” are immune from collateral attack in a sentencing proceeding.      Id.;

see also United States v. Garcia    , 42 F.3d 573, 580-81 (10th Cir. 1994) (discussing


                                             -7-
Custis ). Saenz’s assertion of ineffective assistance of counsel in the state case

does not undermine the federal career-offender enhancement. Accordingly,

we need not either analyze the course of the state criminal proceeding or abate

this action while the state system does so.


                                         III.

      To summarize, we affirm the district court’s dismissal of Saenz’s first and

fifth claim to the extent that they rely on allegations of misleading statements and

ineffective assistance of counsel related to the length of Saenz’s sentence upon

entry of the guilty plea. We also affirm the dismissal of his third and fourth

claims, which challenge the Colorado state criminal conviction. The remainder of

Saenz’s first and fifth claims, along with his second claim alleging ineffective

assistance of counsel, are remanded for further development of the record and

a determination on the merits.   4




4
      In his opening brief, Saenz appealed the dismissal of a sixth claim, which
alleged that his trial and appellate counsel were ineffective for failing to
challenge the lack of notice of the government’s intent to seek the career-offender
sentence enhancement. Saenz’s reply brief concedes that 21 U.S.C. § 851(a) does
not require notice in his situation and asks to withdraw the issue from our
consideration. Accordingly, we do not address this issue on appeal.

      Saenz has also asserted that he was denied due process by the manner in
which the district court adjudicated his motion to vacate. In light of our
resolution of his res judicata issues, we need not reach this contention.

                                          -8-
      The judgment of the district court is AFFIRMED in part, REVERSED

in part, and REMANDED for further proceedings consistent with this order

and judgment. Saenz’s motion to supplement the record on appeal with exhibits

is denied.


                                                 Entered for the Court



                                                 Mary Beck Briscoe
                                                 Circuit Judge




                                      -9-
