                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
              UNITED STATES COURT OF APPEALS                              FEB 1 2005

                              TENTH CIRCUIT                          PATRICK FISHER
                                                                               Clerk



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
                                                       No. 02-2296
 v.                                             (D.C. No. CR-02-1104-BB)
                                                      (New Mexico)
 RICHARD VALENCIANO,

       Defendant-Appellant.




                                    ORDER


Before SEYMOUR, LUCERO and O’BRIEN, Circuit Judges.


      Richard Valenciano was convicted of possession of a firearm by a former

felon in violation of 18 U.S.C. § 922(g)(1) and § 924(e), and sentenced to 210

months incarceration. His counsel filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), and moved for leave to withdraw as counsel. We grant

counsel’s motion to withdraw and dismiss the appeal.

      Anders holds that if counsel finds a case to be wholly frivolous after

conscientious examination, he may so advise the court and request permission to

withdraw. Counsel must also 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 point he chooses, and the court thereafter must undertake a

complete examination of all the proceedings and decide whether the appeal is in

fact frivolous. If it so finds, it may grant counsel’s request to withdraw and

dismiss the appeal. Id. at 744. Pursuant to Anders, counsel provided Mr.

Valenciano with a copy of his appellate brief. Mr. Valenciano responded by

filing a pro se reply brief, in which he raised several issues.

      Mr. Valenciano first contends the government failed to present sufficient

evidence to sustain his conviction. We review de novo a sufficiency of the

evidence challenge, United States v. Hanzlicek, 187 F.3d 1228, 1239 (10th Cir.

1999), and Mr. Valenciano is “faced with a high hurdle” to overcome, United

States v. Voss, 82 F.3d 1521, 1524 (10th Cir. 1996). We must examine the

evidence adduced at trial in the light most favorable to the government,

determining only whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Hanzlicek, 187 F.3d at 1239.

We consider both direct and circumstantial evidence, as well as any reasonable

inferences to be drawn from that evidence. United States v. Davis, 1 F.3d 1014,

1017 (10th Cir. 1993). In resolving a sufficiency challenge, we do not weigh

conflicting evidence or consider the credibility of witnesses. United States v.

Pappert, 112 F.3d 1073, 1077 (10th Cir. 1997). It is the jury’s prerogative as fact


                                          -2-
finder to resolve conflicting testimony, weigh the evidence, and draw inferences

from the facts presented. United States v. Nieto, 60 F.3d 1464, 1469 (10th Cir.

1995). A review of the trial record under these standards establishes that the

evidence set forth by the government was more than sufficient for a reasonable

juror to find Mr. Valenciano guilty of being a felon in possession of a firearm.

      Mr. Valenciano also argues the district court erred by refusing to give a

clarifying instruction concerning the word “knowingly.” At the close of the

evidence, the district court informed the jury that in order to find Mr. Valenciano

guilty, the jurors must be convinced beyond a reasonable doubt that he knowingly

possessed a firearm. Rec., vol. IV at 86. The court instructed that “[t]he word

‘knowingly,’ as that term has been used from time to time in these instructions,

means that the act was done voluntarily and intentionally, not because of mistake

or accident.” Id. at 88. Mr. Valenciano failed to challenge the jury instructions at

trial. See id., vol. V at 2. He has therefore waived his right to do so absent a

demonstration of plain error. United States v. Allen, 129 F.3d 1159, 1162 (10th

Cir. 1997). “Plain error is that which is obvious, or which seriously affects the

fairness or integrity of the trial.” United States v. Enjady, 134 F.3d 1427, 1435

(10th Cir. 1998). The district court gave clear instructions regarding the

government’s burden of proof on the felon in possession charge, including a

comprehensive definition of the term “knowingly.” Mr. Valenciano has failed to


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show how refusal to clarify the term “knowingly” constitutes error.

      Mr. Valenciano next complains that he was denied his Sixth Amendment

right to effective assistance of counsel. This court has repeatedly held that

ineffective assistance claims must be brought in collateral proceedings, not on

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

“Such claims brought on direct appeal are presumptively dismissible, and

virtually all will be dismissed.” Id.; see also United States v. Coleman, 9 F.3d

1480, 1487 (10th Cir. 1993). Mr. Valenciano has failed to show that his claim

qualifies as one of those “rare instances” in which we should consider an

ineffective counsel challenge on direct review. Galloway, 56 F.3d at 1240-41.

      Mr. Valenciano also contends the Allen instruction given by the district

court was unduly coercive. 1 But this court has previously approved Allen

instructions containing similar language. See, e.g., United States v. Reed, 61 F.3d

803, 805 & n.5 (10th Cir. 1995); United States v. Rodriguez-Mejia, 20 F.3d 1090,

1091 (10th Cir. 1994). “The Allen charge [] given was evenhanded; it did not

presume that the majority favored a guilty verdict; and it emphasized that no juror

was expected to yield a conscientious conviction on the evidence.” Reed, 61 F.3d

at 805. We have no difficulty concluding that the wording of the Allen instruction



      1
       Counsel argues, incorrectly, that no Allen charge was given. The district
court did in fact issue one Allen charge to the jurors. See Rec., vol. IV at 104-07.

                                         -4-
given by the district court was not impermissibly coercive.

      Finally, Mr. Valenciano submits that he did not voluntarily waive his Fifth

Amendment privilege against self-incrimination and that the district court erred in

permitting self-incriminatory statements he made to a police officer to be used

against him at trial. He bases his voluntariness challenge on (1) the fact that the

interrogating officer, Gary Garcia, was his first cousin 2 and (2) that he had

consumed a considerable amount of alcohol earlier in the evening.

      We review de novo the ultimate issue of whether a statement was voluntary.

United States v. Nguyen, 155 F.3d 1219, 1222 (10th Cir. 1998). “Waiver of one’s

Fifth Amendment privilege against self-incrimination requires that the individual

‘voluntarily, knowingly and intelligently’ waive his constitutional privilege.”

United States v. Morris, 287 F.3d 985, 988 (10th Cir.) (quoting Miranda v.

Arizona, 384 U.S. 436, 444 (1966)), cert. denied Morris v. United States, 536

U.S. 933 (2002). This standard has two prongs.

             First, the relinquishment of the right must have been voluntary
      in the sense that it was the product of a free and deliberate choice
      rather than intimidation, coercion, or deception. Second, the waiver
      must have been made with a full awareness of both the nature of the


      2
        Mr. Valenciano and Officer Garcia may have indeed been cousins.
However, under cross-examination from Mr. Valenciano’s trial attorney, Officer
Garcia testified that he did not know Mr. Valenciano and had never met him prior
to the evening in question. Rec., vol. IV at 74-75. Mr. Valenciano’s trial
attorney did not question the officer as to whether he was related to Mr.
Valenciano.

                                          -5-
      right being abandoned and the consequences of the decision to
      abandon it. Only if the totality of the circumstances surrounding the
      interrogation reveal both an uncoerced choice and the requisite level
      of comprehension may a court properly conclude that the Miranda
      rights have been waived.

Id. (quoting Colorado v. Spring, 479 U.S. 564, 573 (1987)).

      We conclude that Mr. Valenciano’s statements were knowingly and

voluntarily given. At trial, Mr. Valenciano testified that he did not recall

speaking to police officers on the night in question due to his state of

intoxication. But Officer Garcia testified that he advised Mr. Valenciano of his

rights, Mr. Valenciano knowingly and voluntarily waived those rights, and Mr.

Valenciano appeared lucid throughout the interrogation. See Rec., vol. IV at 71-

74. 3 Accordingly, we reject Mr. Valenciano’s challenge to the inclusion of his


      3
       Officer Garcia’s relevant direct testimony consisted of the following
exchange:

             Q.   Do you recall what time you spoke to Mr. Valenciano?
             A.   I would say approximately between 1:00 in the morning and 2:00.
             Q.   Could you tell if he had been drinking?
             A.   Yes.
             Q.   Did he seem to understand your questions?
             A.   Yes, he did.
             Q.   Did he slur his words in any way?
             A.   No, he did not.
             Q.   Was he aware of where he was at?
             A.   Yes, sir.

      ....

             Q. Did you advise [Mr. Valenciano] of his constitutional rights?

                                          -6-
inculpatory statements at trial.

      After a careful review of the record, we conclude that Mr. Valenciano has

no meritorious grounds for appeal. Accordingly, we GRANT counsel’s request to

withdraw and we DISMISS the appeal.

                                      ENTERED FOR THE COURT


                                      Stephanie K. Seymour
                                      Circuit Judge




             A. Yes, I did.
             Q. Did he indicate that he understood his constitutional rights?
             A. Yes.
             Q. And did he agree to talk to you?
             A. Yes.
             Q. Did you ask him questions about where this firearm that was
             recovered from him came from?
             A. Yes.
             Q. And what did he tell you?
             A. He tells me that he was trying to help a friend out and that he
             took the gun away from his friend but did not want to identify him.
Rec., vol. IV at 71-73.

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