                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          FEB 10 1999

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                               Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 98-1153
 v.                                               (D.C. No. 97-CR-386-B)
                                                        (Colorado)
 PEDRO AYALA-MENDOZA,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BALDOCK and HENRY, 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)(2); 10th Cir. R. 34.1.9. The cause 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       This order and judgment is not binding precedent, except under the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, 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.
      Pedro Ayala-Mendoza was arrested after accepting a controlled delivery of

over four and a half kilograms of methamphetamine. He was charged in a one-

count indictment with conspiracy to possess with intent to distribute

methamphetamine in violation of 21 U.S.C. §§ 841(a)(1); 841(b)(a)(A); 846. Mr.

Ayala-Mendoza, through his appointed counsel, entered into a plea bargain under

which he pled guilty to the charged conspiracy. The government agreed not to

oppose the application of the “safety-valve” reduction under U.S.S.G. §

2D1.1(b)(4) and not to oppose Mr. Ayala-Mendoza’s request to be sentenced at

the low end of the applicable guideline range.

      In sentencing Mr. Ayala-Mendoza, the district court found that Mr. Ayala-

Mendoza’s criminal history of category two over-represented the seriousness of

his prior record and departed downward to category one pursuant to U.S.S.G. §

4A1.3. The court then found that Mr. Ayala-Mendoza met all the criteria of the

safety valve provision and sentenced him to eighty-seven months, the low end of

the then-applicable guideline range, rather than the mandatory minimum of 120

months that would have been required without the downward departure.

      Mr. Ayala-Mendoza filed a pro se notice of appeal in which he notified the

court that irreconcilable differences made further representation by his appointed

trial counsel impossible and that he had filed a grievance against that counsel

with the state grievance committee. New counsel appointed to represent Mr.


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Ayala-Mendoza on appeal filed a brief pursuant to Anders v. California, 386 U.S.

738 (1967). Anders holds that if after conscientious examination counsel finds a

case to be wholly frivolous, he should so advise the court and request permission

to withdraw. Counsel must in addition 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 points he chooses, and the appellate court thereafter

undertakes a complete examination of all the proceedings and decides whether the

appeal is wholly frivolous. If it so finds, it may grant counsel’s request to

withdraw. See id. at 744.

      In his Anders brief, counsel raises two possible points, Mr Ayala’s

indication in his notice of appeal that he was not satisfied with his trial counsel

and a challenge to his sentence. Counsel states his opinion that the appeal

presents no non-frivolous issues and requests leave to withdraw as counsel. Mr.

Ayala-Mendoza has not filed a pro se brief in response. Accordingly, we turn to

an examination of the proceedings to determine if this appeal is wholly frivolous.

      To the extent that Mr. Ayala-Mendoza’s notice of appeal can be viewed as

an assertion that his counsel was ineffective, the issue must be raised collaterally

rather than on direct appeal. See United States v. Galloway, 56 F.3d 1239, 1240

(10th Cir. 1995) (en banc). We pointed out in Galloway that such claims brought

on direct appeal are presumptively dismissible because most ineffectiveness


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claims need further record development. Id. Although we recognized that in rare

instances the merits of an ineffectiveness claim may be reviewed on direct appeal

because the claim needs no further development, id., that rare exception is clearly

not applicable here. To the extent Mr. Ayala-Mendoza desires to raise ineffective

assistance of counsel, therefore, the claim must be pursued in a collateral

proceeding and is therefore dismissed.

      We have carefully examined the record to ascertain whether any ground

exists to support a challenge to Mr. Ayala-Mendoza’s sentence. We note that Mr.

Ayala-Mendoza received the benefit of both a downward departure and the

application of the safety-valve provision, resulting in a sentence substantially

shorter than that which would have been required otherwise. Indeed, the sentence

was exactly that contemplated by the plea agreement. We find nothing in the

record to indicate that the sentence imposed was in violation of the law or the

result of a misapplication of the guidelines. Accordingly, we are without

jurisdiction to consider the challenge. See United States v. Sanchez, 146 F.3d

796-97 (10th Cir. 1998); 18 U.S.C. § 3742(a).




                                         -4-
      After review of the entire proceedings, we conclude that the record

establishes no non-frivolous ground for appeal. The appeal is therefore

DISMISSED and counsel’s motion to withdraw is GRANTED.

                                      ENTERED FOR THE COURT

                                      Stephanie K. Seymour
                                      Chief Judge




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