                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         OCT 14 2003
                                 TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.                                            No. 03-2018
                                                (D. Ct. No. CR-02-1360 JC)
 MACARIO GALVEZ-ROJAS,                                  (D. N. Mex.)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, MCKAY and MCCONNELL, Circuit
Judges.


      After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance in 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.

      Defendant-Appellant Macario Galvez-Rojas, on direct appeal, moves to

vacate his sentence due to ineffective assistance of counsel. We exercise



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
jurisdiction pursuant to 28 U.S.C. § 1291. Because we find that this claim should

be brought on collateral review, we DENY this motion.

      On August 22, 2002, Mr. Galvez pleaded guilty to one count of violating 8

U.S.C. § 1326(b), illegal reentry into the United States after removal subsequent

to a felony conviction. On December 5, 2002, the district court convened a

sentencing hearing for Mr. Galvez at which the district court requested that Mr.

Galvez’s counsel provide any authority permitting a downward sentence departure

under the Sentencing Guidelines. After receiving a day from the court to conduct

the necessary research, counsel failed to find this legal authority. Judge Downes

then sentenced Mr. Galvez to forty-six months, the minimum sentence permissible

under the Sentencing Guidelines without a downward departure. After filing a

timely notice of appeal, Mr. Galvez’s trial attorney filed a motion to withdraw as

counsel, citing the omission of material matters from presentation at sentencing.

The motion was granted.

      On appeal, Mr. Galvez brings an ineffective assistance of counsel claim.

He alleges that his trial counsel’s failure to provide any legal authority permitting

a downward sentence departure represents deficient performance that prejudiced

his defense. He does not directly challenge the lack of a downward sentence

departure. Instead, he alleges that his attorney’s failure to present any legal

authority supporting a downward departure provides an independent ground for


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finding ineffective assistance of counsel. As Mr. Galvez states, “The issue before

this Court is not the merits of any downward departure motion, which admittedly

would require more factual development, but the simpler issue of whether under

the circumstances here, the failure to seek a departure fell below an objectively

reasonable standard and prejudiced Mr. Galvez.”

         We decline to reach the merits of Mr. Galvez’s ineffective assistance of

counsel claim on direct appeal. “Ineffective assistance of counsel claims should

be brought in collateral proceedings, not on direct appeal. Such claims brought

on direct appeal are presumptively dismissible, and virtually all will be

dismissed.” United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en

banc).

         Mr. Galvez, while acknowledging the rarity of direct review of ineffective

assistance of counsel claims, asserts that the present case merits an exception to

the general rule because: (1) a sufficient record exists and (2) no tactical reason

exists for counsel’s failure to present any authority supporting a downward

departure. Neither rationale persuades us to consider this claim on direct appeal.

         Mr. Galvez relies primarily on United States v. Gallegos, 108 F.3d 1272

(10th Cir. 1997), to support his appeal. 1 Gallegos, however, differs from the



        The petitioner also cites United States v. Harfst , 168 F.3d 398, 404 (10th
         1

Cir. 1999), to argue for direct review of this matter. Harfst, however, pertains to
                                                                        (continued...)

                                          -3-
present case in one important regard. In Gallegos, we agreed to hear the

ineffective assistance issue on direct appeal because the petitioner “asserted her .

. . ineffective assistance of counsel claim [] at trial and in a post-trial motion . . . .

, [which are] well-documented in the record . . . .” Id. at 1280. “As recognized

in Galloway, effective review of ineffective assistance of counsel claims requires

that a factual record be developed in and addressed by the district court in the

first instance.” United States v. Alexander, 292 F.3d 1226, 1229 (10th Cir. 2002)

(citations omitted). In the present case, however, Mr. Galvez failed to raise his

ineffective assistance of counsel claim either at trial or by post-trial motion,

thereby denying the district court the possibility of addressing the issue.

       We do not find that Mr. Galvez’s asserted grounds for an exception to the

Galloway rule exist on direct appeal. First, a sufficient record does not exist in

the present case to address adequately the ineffective assistance of counsel claim

on direct review. Second, without this record we cannot evaluate whether Mr.

Galvez’s trial counsel lacked a tactical rationale for his conduct. In short, to

succeed on an ineffective assistance of counsel claim, Mr. Galvez “must show

that counsel's performance was deficient . . . . [and] that the deficient



       1
        (...continued)
a collateral review of an ineffective assistance of counsel claim and, therefore, is
inapposite for our analysis here. Moreover, we are not persuaded by Mr. Galvez’s
citations to our fellow circuit courts of appeals.

                                            -4-
performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668,

687 (1984). No such showing is made here.

      Applying our holding in United States v. Galloway, 56 F.3d 1239 (10th Cir.

1995) (en banc), we DENY Mr. Galvez’s motion to vacate his sentence. We also

DENY his request to appoint counsel to help him prepare a habeas petition.

                                     ENTERED FOR THE COURT,



                                     Deanell Reece Tacha
                                     Chief Circuit Judge




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