                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 29 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 01-1061
                                                    (D.C. No. 99-CR-107-B)
    ROBERTO BOJORQUEZ-                                     (D. Colo.)
    GASTELUM, also known as
    Roberto Bojoroques, also known as
    Roberto Bojorquez,

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before ANDERSON and BALDOCK , Circuit Judges, and BRORBY ,
Senior 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.



*
      This order and judgment is not binding precedent, except under the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.
       Defendant Roberto Bojorquez-Gastelum appeals the sentence imposed

pursuant to his guilty plea to the charges of possession with intent to distribute

methamphetamine and aiding and abetting. The mandatory minimum sentence

under the United States Sentencing Guidelines was 120 months. The government

filed a motion pursuant to USSG § 5K1.1, recommending a reduction to

84 months. The district court adopted the recommendation and imposed

a sentence of 84 months. Defendant appeals his sentence.

       Mr. Bojorquez-Gastelum decided to plead guilty on the eve of his trial.

He was scheduled to be tried on Count II of the indictment, but he entered a guilty

plea to that count. On appeal, his attorney submitted a motion to withdraw

supported by a brief filed pursuant to   Anders v. California , 386 U.S. 738 (1967),

asserting, after conscientious examination, that this appeal is wholly frivolous.

As required, copy of counsel’s     Anders brief and motion to withdraw were

provided to Mr. Bojorquez-Gastelum,      see id. at 744, and he filed a pro se brief,

raising several issues. This court has fully considered his pro se pleadings in

resolving this appeal.

       Mr. Bojorquez-Gastelum argues (1) his sentence was illegally enhanced by

the amount of methamphetamine involved, 1,292.3 grams, even though the count

to which he entered a guilty plea did not specify a quantity of drugs; (2) his

sentence was longer than sentences imposed on others charged in the same drug

conspiracy; (3) his sentence should have been reduced by two levels to account
for his minor role in the offense; and (4) his attorney’s assistance in this appeal

was constitutionally ineffective.

       “This court reviews the district court’s legal conclusions under the

Sentencing Guidelines     de novo and its factual findings for clear error, affording

great deference to the district court’s application of the Guidelines to the facts.”

United States v. Eaton , No. 00-1276, 2001 WL 912756, at *2 (10th Cir. Aug. 14,

2001). We will construe liberally defendant’s pro se briefs and hold them to

a less stringent standard than briefs prepared by attorneys.   Haines v. Kerner ,

404 U.S. 519, 520-21 (1972). We have conducted “a full examination of all the

proceedings.”    Anders , 386 U.S. at 744.

       Mr. Bojorquez-Gastelum cannot prevail on his argument that because Count

II did not specify an amount of methamphetamine, his sentence was improperly

based on 1,292.3 grams. He stipulated to that amount at his plea hearing.

Moreover, the amount was an element of the offense, not a sentence enhancer.

See 21 U.S.C. § 841(b); Appellee’s App. at 32 (Indictment, Count II, charging

violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A)(viii)).

       Mr. Bojorquez-Gastelum next objects to the length of his sentence

compared to others charged in the same drug conspiracy, based on his

comparatively minor role. He also argues that as a cooperating witness, he should

have received a shorter sentence. Different sentences for coconspirators are

permissible when they are based on differences in sentencing factors, such as
degree of participation in the crime and criminal history.   United States v. Maden ,

114 F.3d 155, 159 (10th Cir. 1997). Mr. Bojorquez-Gastelum’s unsupported

claim that he received a harsher sentence than others is too conclusory for

appellate review.   Scott v. Hern , 216 F.3d 897, 910 n.7 (10th Cir. 2000).

Furthermore, for his cooperation with the government, Mr. Bojorquez-Gastelum

received a reduction from a mandatory minimum sentence of 120 months to

84 months. Therefore, no sentencing error occurred.

       Mr. Bojorquez-Gastelum also maintains that the district court should have

reduced his sentence by two levels for his minor role in the offense. We are

without jurisdiction to review his challenge to the district court’s refusal to depart

downward. United States v. Saffo , 227 F.3d 1260, 1271 (10th Cir. 2000) (absent

clear indication that district court misunderstood discretion to depart or imposed

illegal sentence, appellate court has no jurisdiction to review refusal to depart

downward), cert. denied , 121 S. Ct. 1608 (2001). Even so, as the district court

explained, given the government’s request to reduce his sentence to 84 months,

the requested two-level downward departure to a sentencing range of 87 to 108

months would not have affected the sentence imposed.

       Finally, Mr. Bojorquez-Gastelum alleges that his attorney’s failure to

raise any issues on appeal constituted constitutionally ineffective assistance.

As indicated, the attorney filed an   Anders brief, alleging no appealable issues.

Claims of ineffective assistance of counsel generally should be brought in a
post-conviction proceeding.      Beaulieu v. United States , 930 F.2d 805, 806-07

(10th Cir. 1991), overruled on other grounds by       United States v. Galloway ,

56 F.3d 1239, 1241 (10th Cir. 1995) (en banc). Here, we cannot effectively

address this claim because the district court did not have an opportunity to rule

on it and the record on appeal is limited to sentencing issues.     See Galloway ,

56 F.3d at 1240. Under the circumstances, Mr. Bojorquez-Gastelum’s ineffective

assistance of counsel claim will be dismissed without prejudice.

       The motion to withdraw filed by defendant’s attorney, Normando R.

Pacheco, is granted. Upon de novo review of the parties’ briefs and the entire

record on appeal, we conclude that the record demonstrates no non-frivolous

appellate issues. Mr. Bojorquez-Gastelum’s claim of ineffective assistance of

counsel is dismissed without prejudice. The sentence is AFFIRMED.

                                                         Entered for the Court


                                                         Bobby R. Baldock
                                                         Circuit Judge
