                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          APR 20 1999

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 98-1255
 v.
                                                  (D.C. No. 98-CR-13-M)
                                                        (Colorado)
 FRANCISCO JAVIER RODARTE-
 BARRAZA,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges.



      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 cause 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       This order and judgment is not binding precedent, except under the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, or 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.
      Francisco Javier Rodarte-Barraza appeals from the sentence imposed after

his plea of guilty to unlawfully reentering the United States after deportation for

an aggravated felony in violation of 8 U.S.C. §§ 1326(a) and (b)(2). Counsel

appointed to represent defendant on appeal filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967). For the reasons set out below, we dismiss the

appeal.

      The facts supporting defendant’s guilty plea are set forth in the Plea

Agreement and Statement of Facts Relevant to Sentencing. The plea agreement

anticipated a sentencing guideline range of 46 to 57 months. The Probation

Department calculated a guideline range of 77 to 96 months and recommended 77

months imprisonment. Defendant’s trial counsel filed a Motion for Downward

Departure, arguing that criminal history category VI overrepresented the

seriousness of defendant’s criminal history and that the unusual circumstances

surrounding defendant’s reentry into the United States supported a downward

departure. The district court agreed on both accounts and sentenced defendant to

30 months imprisonment.

      Defendant asked his trial counsel to file a notice of appeal on his behalf.

New counsel was appointed to represent him on appeal. Anders holds that if

counsel finds a case to be wholly frivolous after conscientious examination, he

should so advise the court and request permission to withdraw. Counsel must in


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addition submit to both the court and his client a brief referring to anything in the

record arguably supportive of the appeal. The client may then raise any points he

chooses, and the appellate court thereafter undertakes a complete examination of

all proceedings and decides whether the appeal is, in fact, frivolous. If it so

finds, it may grant counsel’s request to withdraw and dismiss the appeal. See id.

at 744.

      In his Anders brief, counsel raises two possible points: ineffective

assistance of counsel and a challenge to the sentence. Defendant was notified of

his right to file a pro se brief, and he has not chosen to do so. Accordingly, we

turn to an examination of the proceedings below to determine if the appeal is

wholly frivolous.

      To the extent that Mr. Rodarte-Barraza’s notice of appeal can be viewed as

an assertion that his counsel was ineffective, the issue generally must be raised

collaterally rather than on direct appeal. See United States v. Galloway, 56 F.3d

1239, 1240 (10th Cir. 1995) (en banc). We pointed out in Galloway that such

claims brought on direct appeal are presumptively dismissible because most

ineffectiveness claims need further record development. Id. Although we

recognized that in rare instances the merits of an ineffectiveness claim may be

reviewed on direct appeal because the claim needs no further development, id.,

that rare exception is clearly not applicable here. In fact, the record we have


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before us reflects that trial counsel was exceptionally effective in convincing the

district court to significantly reduce defendant’s potential sentence. To the extent

defendant wishes to raise counsel ineffectiveness issues not apparent on this

record, he must do so collaterally.

      We have carefully examined the record to ascertain whether any ground

exists to support a challenge to defendant’s sentence. Here, the sentence was not

only below that recommended by the Probation Department, it was also below that

contemplated by the plea agreement. We find nothing in the record to indicate

that the sentence imposed was in violation of the law or the result of a

misapplication of the guidelines. Accordingly, we are without jurisdiction to

consider the challenge. See United States v. Sanchez, 146 F.3d 796, 796-97 (10th

Cir. 1998); 18 U.S.C. § 3742(a).

      After review of the entire proceedings, we conclude that the record

establishes no non-frivolous ground for appeal. The appeal is therefore

DISMISSED and counsel’s motion to withdraw is GRANTED.

                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Chief Judge




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