* After examining appellant’s brief and the appellat e record, this panel has

determined unanimously that oral argument would notmaterially 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 ordered submitted w ithout oral argument. This Order and Judgment is not binding precedent, exceptunder the doctrines of law of the case, res judicata, and collateral estoppel. T he 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. 

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

### April 11, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES of AMERICA, Plaintiff-Appellee, v. JEFFERY M. ZARING, Defendant-Appellant. No. 05-4126 (D.C. No. 1:04-CR-009-TC)

(D. Utah)

ORDER AND JUDGMENT *

Before HARTZ, EBEL, and TYMKOVICH , Circuit Judges.

Jeffery Zaring pleaded guilty to possession with intent to distribute methamphetamine. In this direct appeal, Mr. Zaring has filed a pro se notice of appeal, and his attorney has filed an Anders brief and a motion to withdraw as- 2 -

counsel. See Anders v. California , 386 U.S. 738 (1967). Mr. Zaring has not filed

a pro se brief in response to his counsel’s Anders brief. We agree with counsel that there are no meritorious issues to be raised o n appeal, grant counsel’s motion to withdraw, and dismiss this appeal.
I. BACKGROUND On December 8, 2003, police officers discovered met hamphetamine in a vehicle the officers stopped after observing it leave Ms. Corwin’s residence. The occupants of the vehicle told the officers that the y had gotten the methamphetamine from Mr. Zaring at Ms. Corwin’s res idence. Police procured a search warrant for the home of Ms. Corwin. In exec uting the warrant, officers discovered a plastic bag of a crystal type substanc e in a hide-away container under Mr. Zaring’s care and a large amount of moneyon him. Mr. Zaring admitted sharing drugs with his friends. The offic ers then arrested Mr. Zaring and Ms. Corwin. Pursuant to a plea agreement, Mr. Zaring pleaded gu ilty to possession with intent to distribute methamphetamine, a crime under21 U.S.C. § 841(a)(1) & (b)(1)(A). The drug quantities to which Mr. Zaring stipulated placed his base offense level at 32, pursuant to § 2D1.1 of the Uni ted States Sentencing Guideline. As part of the plea agreement, the Gove rnment agreed to recommend a three level reduction for acceptance of responsibil ity, placing Mr. Zaring’s total1 Counsel suggests in the Anders brief that Mr. Zaring waived his right to

appeal. In his Statement in Advance of Change of P lea to Guilty, Mr. Zaring acknowledged that “there is no appellate review of any lawful sentence imposed under a plea of guilty” and that he “may appeal the sentence imposed upon [him] in this case only if the sentence is imposed in vio lation of law or, in light of factors listed in 18 U.S.C. § 3553(a), the sentence is unreasonable.” Additionally, (continued...) - 3 - offense level at 29. With a criminal history categ ory of IV, Mr. Zaring’s guideline range was 121 to 151 months’ imprisonment . The district court sentenced Mr. Zaring to 121 months’ imprisonment. Mr. Zaring sought to appeal, but his attorney filed an Anders brief and moved to withdraw as counsel, stating that his clie nt’s grounds for appeal—that the district court failed to downward depart and th at he received ineffective trial counsel assistance— were clearly without merit. Mr . Zaring has not filed a pro se brief.
II. DISCUSSION Where an attorney files an Anders brief, the court “proceeds, after full examination of all proceedings, to decide whether t he case is wholly frivolous. If it so finds it may grant counsel’s request to withd raw and dismiss the appeal insofar as federal requirements are concerned.” An ders , 386 U.S. at 744. We therefore examine Mr. Zaring’s two grounds of appea l raised in his pro se notice of appeal: 1) the district court failed to depart d ownward from the sentencing guideline; and 2) his trial counsel provided ineffe ctive assistance. 11 (...continued)

Mr. Zaring acknowledged that he was: knowingly, voluntarily and expressly waiv[ing] [his ] right to appeal any sentence imposed upon [him], and the manner in whic h the sentence is determined, on any of the grounds set forth in Titl e 18, United States Code, Section 3742 or on any ground whatever, excep t [he] [did] not waive [his] right to appeal (1) a sentence above th e maximum penalty provided in the statue of conviction. We need not decide whether Mr. Zaring has waived hi s right to appeal in this case because the Government has not sought, by any means , to enforce the plea agreement. In any event, we ultimately conclude th at his appeal warrants dismissal.

2 Section 5K1.1 provides that: Upon motion of the government stating that the defe ndant has provided substantial assistance in the investigation or pros ecution of another person who has committed an offense, the court may depart from the guidelines. - 4 - A. Failure to Depart Downward Mr. Zaring contends that he should have received a downward departure for substantially assisting the government. We agree t hat this ground for appeal is meritless. We therefore dismiss it with prejudice. The Government did not file a U.S.S.G. § 5K1.1 moti on for downward departure in this case. 2 However, “[a] defendant’s assistance to the government is also relevant to the factors delineated in § 3553(a )(2), particularly the need for the sentence to promote respect for the law and to provide just punishment, to afford adequate deterrence, and to protect the publ ic.” United States v. Doe , 398 F.3d 1254, 1260 (10th Cir. 2005). Furthermore, “[t ]he sentencing judge has an- 5 -

obligation to consider all the relevant factors in a case and to impose a sentence outside the guidelines in an appropriate case” whet her or not the Government files a § 5K1.1 motion. Id. (quotation omitted) (emphasis added). In other wo rds, “a defendant’s assistance should be fully considered b y a district court at sentencing even if that assistance is not presented to the cou rt in the form of a § 5K1.1 motion.” Id. at 1261. The sentencing transcript in this case indicates th at the district court considered Mr. Zaring’s assistance to the government. Specifically, the district court heard from the Government, Mr. Zaring’s couns el, and Mr. Zaring regarding Mr. Zaring’s assistance. The district court ultimately concluded that Mr. Zaring “was not cooperative.” We do not have jurisdiction to review a district co urt’s discretionary decision to refuse to downward depart on the groundthat a defendant’s circumstances do not warrant the departure. UnitedStates v. Hamilton , 413 F.3d 1138, 1146 (10th Cir. 2005) (quotations omitted). “[A]ppellate jurisdiction exists only in the very rare circumstance that the distric t court states that it does not have any authority to depart from the sentencing gu ideline range for the entire class of circumstances proffered by the defendant.” Id. (quotations omitted). This was obviously not the situation in this case.3 Although counsel, in its Anders brief, framed this first issue on appeal as

challenging only the district court’s denial to dep art downward, we also interpret Mr. Zaring’s pro se notice of appeal as arguing that the Government br eached the plea agreement by failing to file a § 5K1.1 motion for downward departure. Nevertheless, we find this additional argument to b e without merit because the Government merely agreed “to considerfiling a U.S.S.G. § 5K1.1 motion for downward departure at the time of sentencing, if it deem[ed] appropriate.” We therefore conclude that the Government made no agre ement requiring it to file a § 5K1.1 motion in this case. - 6 - Having concluded that we lack jurisdiction to entertain Mr. Zaring’s arguments, we dismiss this ground for appeal with p rejudice. 3
B. Ineffective Assistance of Counsel In this direct criminal appeal, Mr. Zaring also all eges that his counsel was ineffective for failing to object to elements in th e presentence report which would have affected his sentence. We conclude that this ground is meritless on direct appeal, and therefore dismiss it without prejudice to Mr. Zaring’s rights to reassert it at a proper collateral proceeding. Ineffective assistance of counsel claims should ord inarily be brought in collateral proceedings, not on direct appeal. Unit ed States v. Brooks , 438 F.3d 1231, 1242 (10th Cir. 2006). In fact, “[i]neffecti ve assistance claims brought on direct appeal are presumptively dismissible.” Id. (quotations omitted). In rare cases, we will permit ineffective assistance of cou nsel claims to be raised on direct appeal when the record needs no further deve lopment. Id. However, “even if the record appears sufficient, ‘the claim should still be presented first to the- 7 -

district court in collateral proceedings (which can be instituted without delay) so the reviewing court can have the benefit of the dis trict court’s views.” Id. (quoting United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995)). In this case, Mr. Zaring’s arguments regarding inef fective assistance have never been raised before the district court and thu s the district court has not had an opportunity to evaluate trial counsel’s performa nce. Additionally, we do not believe that there is a sufficiently developed fact ual record to enable us to decide Mr. Zaring’s ineffective assistance claim in the fi rst instance. We therefore dismiss this claim without prejudice.
III. CONCLUSION For the foregoing reasons, we find that Mr. Zaring’ s appeal is wholly without merit; DISMISS WITH PREJUDICE his failure t o downward depart claim; and DISMISS WITHOUT PREJUDICE his ineffectiv e trial counsel claim. We GRANT counsel’s motion to withdraw. Additionall y, we GRANT Mr. Zaring in forma pauperis status on this appeal based on the district court’ s initial finding of eligibility under the appropriate standards.

ENTERED FOR THE COURT

David M. Ebel- 8 - Circuit Judge