                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          JAN 31 2002

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 00-1466
 v.                                               (D.C. No. 00-CR-35-S)
                                                      (D. Colorado)
 DARRIUS COURTNEY TAYLOR,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR and McKAY, Circuit Judges, and BRORBY, Senior Circuit
Judge.


      Without filing any pretrial motions to suppress any statements or evidence,

Darrius Taylor pled guilty to Count 1 of an indictment charging him with

possession of a firearm by a prohibited person in violation of 18 U.S.C. §


      *
       After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore 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judgment is not binding precedent, except under the doctrines of law of the case,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.
922(g)(1). In the plea agreement, the parties agreed there was no dispute

regarding the facts set forth, which established the requirements for meeting every

element of the named offense.

      The parties agreed to an adjusted offense level of 23 and recommended this

level to the district court pursuant to Federal Rule of Criminal Procedure

11(e)(1)(C). The court accepted the recommendation. Combined with Mr.

Taylor’s criminal history category of III, the total imprisonment range was 57 to

71 months. The district court sentenced Mr. Taylor to 66 months imprisonment,

and he appeals.

      The district court appointed present counsel to represent Mr. Taylor in his

appeal. Counsel thereafter filed a brief pursuant to Tenth Circuit Rule 46.4(B)(1)

and Anders v. California, 386 U.S. 738 (1967). According to the procedure set

forth in Anders, appellant’s counsel must first make a “conscientious

examination” of the case to determine if the appeal is “wholly frivolous.” Id. at

744. If counsel so finds, counsel may advise the court of such finding and then

request the court’s permission to withdraw. Additionally, counsel must submit to

both the court and to the client a brief denoting any point in the record that

arguably supports the appeal. See id.

      The client may then, by filing additional materials with the court, raise any

point concerning the appeal. Thereafter, the reviewing court must completely


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examine all proceedings in the case to determine whether, in fact, the appeal is

frivolous. If the court so finds, it subsequently may grant counsel permission to

withdraw and dismiss the appeal. See id.

       Pursuant to this procedure, counsel for Mr. Taylor raises two issues in his

Anders brief. The first issue concerns whether the district court erred in

sentencing Mr. Taylor at the higher, rather than lower, end of the applicable

guideline range. The second issue counsel raises is whether this court may

consider, on direct appeal, Mr. Taylor’s claim of ineffective assistance of trial

counsel. Mr. Taylor, pro se, apparently claims his trial counsel failed to

effectively represent him, and that as a result, Mr. Taylor received a 66-month

sentence rather than the 57-month sentence he had anticipated.

      Regarding the first point raised, this court lacks jurisdiction to review Mr.

Taylor’s sentence. See 18 U.S.C. § 3742(a), (c)(1). “[A] defendant receiving a

sentence under a Rule 11(e)(1)(C) plea agreement may appeal only when his

sentence ‘was imposed in violation of law [or] was imposed as a result of an

incorrect application of the sentencing guidelines.’” United States v. Sanchez,

146 F.3d 796, 797 (10 th Cir. 1998). Absent fulfillment of either condition, we

lack jurisdiction to review a defendant’s challenge to the district court’s

sentencing determination. See id.




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       The applicable guideline range recommended by the parties pursuant to the

Rule 11(e)(1)(C) plea agreement included a period of imprisonment from 57 to 71

months. 1 The district court, using the same total offense level and criminal

history category figures recommended by the parties, sentenced Mr. Taylor at the

higher end of this guideline range. 2 The sentence imposed thus fell within the

appropriate range as determined by both the parties and the district court.

Nothing in the record indicates that this sentence was “imposed in violation of

law” or “as a result of an incorrect application of the sentencing guidelines.” 18

U.S.C. §§ 3742(a)(1) & (2). We are therefore without jurisdiction to review the

sentence chosen by the district judge.

       Regarding the second issue raised in counsel’s Anders brief, we may not

consider Mr. Taylor’s claim of ineffective assistance of trial counsel on direct

appeal. Established precedent from this circuit holds that, absent certain limited

circumstances not present here, “claims of constitutionally ineffective counsel

should be brought on collateral review, in the first petition filed under 28 U.S.C.

§ 2255.” United States v. Galloway, 56 F.3d 1239, 1242 (10 th Cir. 1995). Such

claims brought on direct appeal are “presumptively dismissible.” Id at 1240. To


   1
     The parties determined this guideline range based on an adjusted offense
   level of 23, combined with a criminal history category of III.
   2
    Based on the possible range of 57 to 71 months, the District Judge
   sentenced Mr. Taylor to 66 months imprisonment.

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overcome this presumption, the record, as it stands on direct appeal, must be

sufficiently complete to allow the reviewing court to fully evaluate the

ineffectiveness claim, including “the tactical reasons for trial counsel’s decisions,

the extent of trial counsel’s alleged deficiencies, and the asserted prejudicial

impact on the outcome of the trial.” United States v. Beaulieu, 930 F.2d 805,

807-808 (10 th Cir. 1991).

      As noted by counsel in his Anders brief, the record in this case is not

sufficiently developed to allow for effective review of Mr. Taylor’s claim.

Explanation of and justification for the various tactical decisions made by trial

counsel are lacking in the present record. Further, the record fails to show the

exact prejudice to Mr. Taylor as a result of his counsel’s tactics. Absent such

details, which are necessary for this court to evaluate whether trial counsel was,

in fact, ineffective, this claim must be brought on collateral review pursuant to 28

U.S.C. § 2255.

      Accordingly, we GRANT counsel’s request to withdraw, DISMISS Mr.

Taylor’s sentencing challenge due to a lack of appellate jurisdiction, and

DISMISS without prejudice his claim of ineffective assistance of trial counsel.

                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Circuit Judge


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