                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit

                                                                            OCT 9 1998
                      UNITED STATES COURT OF APPEALS

                                    TENTH CIRCUIT                        PATRICK FISHER
                                                                                Clerk


 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,                      No. 98-6142
           v.                                           (W.D. Oklahoma)
 GWENDOLYN ARTESIA MURPHY,                          (D.C. No. CR-97-210-L)

                Defendant - Appellant.


                              ORDER AND JUDGMENT          *




Before ANDERSON , McKAY , and LUCERO , 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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

       Following a guilty plea, Gwendolyn Artesia Murphy was convicted on one

count of distribution of cocaine in violation of 21 U.S.C. § 841(a)(1), and she was



       This order and judgment is not binding precedent, except under the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.
sentenced to two hundred sixteen months’ imprisonment. In this appeal,

Murphy’s counsel has filed an    Anders brief and a motion to withdraw.   See

Anders v. California , 386 U.S. 738, 744 (1967). As provided in    Anders , Murphy

received a copy of her counsel’s brief so that she could “raise any points that

[s]he chooses.”   Id. In response, Murphy has filed a letter which sets forth the

following claims of error respecting her conviction and her sentence: 1) she

received ineffective assistance of counsel; 2) there was a “discrepancy” between

what she pleaded to and what was “brought into court;” 3) FBI agents failed to

give her Miranda warnings; 4) the government failed to turn over the FBI agents’

report; and 5) she was coerced into entering the plea agreement. She has also

filed a motion for withdrawal of the   Anders brief, and an additional motion for

appointment of new counsel. We deny Murphy’s motions, affirm the conviction

and sentence, and grant counsel’s motion to withdraw.



                                   BACKGROUND

      According to the Presentence Investigation Report (“PSR”), R. Vol. II, the

government filed a single count information which charged that, from early 1996

through July 28, 1997, Murphy knowingly and intentionally possessed with intent

to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1). On January 6,

1998, Murphy appeared with counsel before the district court for the purpose of


                                          -2-
entering a guilty plea. At that time, pursuant to Fed. R. Crim. P. 11, the court

advised Murphy of the rights she was waiving by her plea. R. Vol. III at 4-7.

The court also inquired about her state of mind, her general understanding, as

well as her specific understanding of the penalties which could be imposed.         Id. at

9-12, 22. Finally, the court questioned her at length in order to determine

whether the plea was voluntary and whether there was a factual basis for it.        Id. at

12-16, 19-21. In response to questions by the government and the court, Murphy

testified that during most of 1996 and 1997 until she was arrested, she purchased

one quarter ounce quantities of rock cocaine once or twice a week.        Id. at 16-17.

Although she denied selling any of the crack, she admitted that she shared it with

friends. Id. at 18-21. The court then accepted Murphy’s plea, finding that she

was competent to enter it, and that she did so voluntarily,    id. at 22, and it ordered

the PSR to be prepared.    Id. at 22-23. Based upon Murphy’s statements to FBI

agents, the PSR set the amount of crack cocaine attributable to Murphy at 1.13

kilograms, which resulted in a base offense level of 36. R. Vol. II at 6. Murphy’s

counsel filed objections to the PSR.     Id. at 13-16. Those objections disputed the

calculation of the drug quantity, the failure to give credit for acceptance of

responsibility, and the failure to recommend a downward departure.         Id. At

sentencing, the district court sustained Murphy’s objection respecting her




                                             -3-
entitlement to three points credit for acceptance of responsibility, but it denied the

other objections. R. Vol. IV at 49, 63, 67-68.



                                      DISCUSSION

       As noted, Murphy’s counsel filed an            Anders brief contending that his

conscientious review of the record and legal research led him to conclude that

nothing in the record arguably supported this appeal.           See Anders , 386 U.S. at

744. Pursuant to Anders , we must independently examine the record to determine

whether this appeal is in fact without merit,         see id. , and we also consider the

specific points raised by Murphy’s response and motions.

       A. Ineffective Assistance of Counsel             . Contrary to her representations

before the district court, Murphy now claims that her counsel did not adequately

explain the plea agreement to her, that he pressured her into signing it, and that he

simply told her to answer “yes” to the court’s questions. As the government

correctly notes, generally claims of ineffective assistance of counsel are not

addressed on direct appeal.     United States v. Galloway , 56 F.3d 1239, 1240 (10th

Cir. 1995). However, we find that this is one of those “rare instances [in which]

an ineffectiveness of counsel claim may need no further development prior to

review on direct appeal.”     Id. As noted, Murphy testified on the record that no

one had coerced, threatened, or promised her anything in return for her plea. R.


                                                -4-
Vol. III at 13, 21. Moreover, she specifically professed satisfaction with her

counsel, and she repeatedly indicated her understanding, both of the proceedings

and of the consequences of her plea.    Id. at 5, 8, 4-15, 22. Although such record

responses may be subject to challenge under appropriate circumstances, they

“constitute a formidable barrier in any subsequent [ ] proceedings.”       Blackledge v.

Allison , 431 U.S. 63, 74 (1977). Murphy offers only conclusory allegations that

she was “pressured” into pleading guilty, and that she failed to understand the

proceedings and the consequences of that plea. Such allegations are insufficient

to overcome the presumption of verity accorded “[s]olemn declarations in open

court.” Blackledge , 431 U.S. at 74. Accordingly, we find this claim to be

without merit.

       B. Discrepancy Between What Was Pleaded and What Was Brought

In.   Although Murphy’s initial response letter does not offer any explanation of

the alleged discrepancy, her motion states that she “has factual basis for an appeal

based on personal use of ¼ ounce of a controlled substance instead of possession

with intent to sell.” Motion for Withdrawal of Appellant’s       Anders Brief.

However, any such claim is clearly contradicted by Murphy’s own testimony at

the plea hearing. That is, at the hearing she admitted that she had been arrested

with 5.8 grams of crack cocaine in her possession, and she further admitted that it

had been her “intent to use   and also to give that crack cocaine to other people   .”


                                            -5-
R. Vol. III at 19 (emphasis added). Apparently, Murphy contends that her plea

and conviction cannot stand without evidence that she actually       sold crack cocaine.

However, it is well settled that sharing drugs with another constitutes

“distribution” under § 841.   See, e.g. , United States v. Hester , 140 F.3d 753, 761

(8th Cir. 1998); United States v. Washington , 41 F.3d 917 (4th Cir. 1994).

       To the extent that Murphy’s response may be interpreted to contest the

quantity of crack cocaine attributed to her, we conclude that the district court’s

finding as to amount was well-supported both by the evidence adduced at the

sentencing hearing and by Murphy’s own testimony when she entered her plea.

Accordingly, we find this contention to be meritless.

       C. Miranda Warning and Government Failure to Turn over FBI

Report . Murphy complains that the FBI agents who questioned her failed to

give her a Miranda warning.       1
                                      She also contends that the FBI report should have

been turned over as part of the discovery process. Her guilty plea waives any

such non-jurisdictional claims.        United States v. Robertson , 45 F.3d 1423, 1434

(10th Cir. 1995).




       We note that, at the sentencing hearing, Murphy did not dispute the FBI
       1

agent’s testimony that she had been advised of her Miranda rights.

                                               -6-
      D. Involuntariness of Plea    . Finally, Murphy contends that her plea

resulted from pressure and coercion. However, as noted     supra , her testimony at

the time she entered the plea directly contradicts this claim.

      Therefore, we DENY Murphy’s motions to withdraw the        Anders brief and

to appoint new counsel, we AFFIRM Murphy’s conviction and sentence, and we

GRANT defense counsel’s motion to withdraw.

                                               ENTERED FOR THE COURT



                                               Stephen H. Anderson
                                               Circuit Judge




                                         -7-
