* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### FEB 10 1999 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

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



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BALDOCKand HENRY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9. Th e cause is therefore ordered submitted without oral argument.-2-

Pedro Ayala-Mendoza was arrested after accepting a controlled delivery of over four and a half kilograms of methamphetamine. He was charged in a onecount 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, enter ed into a plea bargain under which he pled guilty to the charged conspiracy. Th e government agreed not to oppose the application of the “safety-valve” reduct ion under U.S.S.G. § 2D1.1(b)(4) and not to oppose Mr. Ayala-Mendoza’s r equest to be sentenced at the low end of the applicable guideline range. In sentencing Mr. Ayala-Mendoza, the district courtfound that Mr. AyalaMendoza’s criminal history of category two over-rep resented 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-Mendozamet 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 th e mandatory minimum of 120 months that would have been required without the do wnward departure. Mr. Ayala-Mendoza filed a pro se notice of appeal i n which he notified the court that irreconcilable differences made further representation by his appointed trial counsel impossible and that he had filed a gr ievance against that counsel with the state grievance committee. New counsel ap pointed to represent Mr.-3-

Ayala-Mendoza on appeal filed a brief pursuant to Anders v. California , 386 U.S. 738 (1967). Anders holds that if after conscientious examination coun sel finds a case to be wholly frivolous, he should so advise th e court and request permission to withdraw. Counsel must in addition submit to bo th 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 th e appellate court thereafter undertakes a complete examination of all the procee dings 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 Ayal a’s indication in his notice of appeal that he was not satisfied with his trial counsel and a challenge to his sentence. Counsel states hi s 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 respo nse. Accordingly, we turn to an examination of the proceedings to determine if t his appeal is wholly frivolous. To the extent that Mr. Ayala-Mendoza’s notice of ap peal 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 Gallowaythat such claims brought on direct appeal are presumptively dismissible beca use most ineffectiveness-4-

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-Mendo za 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 downwa rd departure and the application of the safety-valve provision, resultin g 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. Acco rdingly, 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).-5-

After review of the entire proceedings, we conclude that the record establishes no non-frivolous ground for appeal. Th e appeal is therefore
DISMISSED and counsel’s motion to withdraw is GRANTED

. ENTERED FOR THE COURT Stephanie K. Seymour Chief Judge