F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 19 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 04-2018
v. (D.C. No. CR-03-1662-JC)
ARTURO FIGUEROA-BANUELLOS, (D. New Mexico)
also known as Gonzaga Gonzalez-
Andrade,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, McKAY, and HARTZ, Circuit Judges.
After examining the briefs and the appellate record, this panel has
determined unanimously to honor the parties’ request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f). The case is therefore ordered
submitted without oral argument.
On August 26, 2003, a federal grand jury returned a two-count indictment
against Defendant. Count I charged Defendant with violation of 8 U.S.C. §§
*
This order and judgment is not binding precedent, except under the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.
1326(a)(1), (2), and (b)(2), for being an alien found in the United States after
having been convicted of an aggravated felony and deported. Count II charged
Defendant with being an illegal alien in possession of a firearm in violation of 18
U.S.C. §§ 922(g)(5)(A) and 924(a)(2). On October 31, 2003, pursuant to an
agreement with the Government, Defendant pleaded guilty. Defendant filed a
motion for downward departure from the federal sentencing guideline range. The
district court denied the motion and sentenced Defendant pursuant to the lowest
end of the guideline range to a term of eighty-four months in prison. Because
Defendant indicated that he wished to appeal issues related to ineffective
assistance of counsel, his trial counsel was permitted to withdraw and present
counsel was appointed.
On appeal, Defendant argues that his trial counsel was ineffective in failing
to cite specific authority in his downward departure motion. 1 We have previously
stated that “[i]neffective 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
1
Defendant raised several other issues for review on appeal which counsel
submitted pursuant to the mandate of Anders v. California, 386 U.S. 738 (1967).
Aplt. Br. at 2, n.1. We are also in receipt of Defendant’s pro se submission in
support of his additional claims. We express no opinion on the merit of any of
these issues. However, we agree with counsel that the record is insufficiently
developed to consider these issues on direct appeal and that they would be more
appropriately presented in a § 2255 petition.
-2-
v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995). We have a strong preference
that ineffective assistance of counsel claims be brought pursuant to a collateral
proceeding because
[a]n opinion by the district court is a valuable aid to appellate review
for many reasons, not the least of which is that in most cases the
district court is familiar with the proceedings and has observed
counsel’s performance, in context, firsthand. Thus, even if the record
appears to need no further development, the claim should still be
presented first to the district court in collateral proceedings (which
can be instituted without delay) so the reviewing court can have the
benefit of the district court’s views.
Id. Therefore, “there is only a slight chance that we will forego the development
of a factual record or at least an opinion by the district court on the subject in the
first instance.” Id. at 1241. After review of the briefs and the record, we see no
reason to depart from this general rule.
The conviction and sentence are AFFIRMED.
Entered for the Court
Monroe G. McKay
Circuit Judge
-3-