* This order and judgment is not binding precedent, e xcept under the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

### DEC 18 1998 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.VICTOR MANUEL FRIASLEGARDA, Defendant-Appellant. No. 96-2252 (D.C. No. CR-96-328-JC) (New Mexico)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BRORBY and BRISCOE , 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-

Victor Manuel Frias-Legarda was stopped at a bordercheckpoint at Alamogordo, New Mexico, and upon questioning was un able to provide registration or proof of insurance for the truck he was driving. He consented to a canine sniff search of the truck, which ultimately resulted in the discovery of over 130 pounds of marijuana hidden in the truck’s gas t anks. He was convicted after a jury trial of possessing with intent to distribut e 50 kilograms or more of marijuana, in violation of 21 U.S.C. § 841(a)(1) an d 21 U.S.C. § 841(b)(1)(C), and sentenced to forty-one months in prison and two years of supervised release. Mr. Frias-Lagarda’s retained counsel filed a notice of appeal and subsequently filed a brief pursuant to Tenth Circui t Rule 46.4 (B) (1) and Anders v. California , 386 U.S. 738 (1967). Anders holds that if after conscientious examination counsel finds a case to be wholly frivo lous, 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 rais e any points he chooses, and the appellate court thereafter undertakes a complete ex amination of all the proceedings and decides whether the appeal is wholl y frivolous. If it so finds, it may grant counsel’s request to withdraw. See id. at 744. Although Anders itself dealt only with the duties of appointed counsel, Te nth Circuit Rule 46.4 (B)(1) imposes those duties on all counsel.-3-

In his Anders brief, counsel presented two points of error, rais ing the trial court’s denial of a three-point downward adjustmentfor acceptance of responsibility, and the trial court’s refusal to le t him re-cross examine a witness. Counsel also stated his opinion that the appeal pre sented no non-frivolous issues and requested leave to withdraw as counsel. Mr. Fr ias-Lagarda filed a pro se brief in response asserting that his counsel was in competent in processing his appeal, and that the trial court’s comments to coun sel in front of the jury denied him due process. We turn to an examination of the proceedings to de termine if this appeal is wholly frivolous. Counsel raises the trial court’s failure to give Mr . Frias-Lagarda a threepoint reduction in his offense level under U.S.S.G. § 3E1.1 for acceptance or responsibility. The trial court denied the reducti on on the ground that Mr. FriasLagarda had consistently denied he knew the marijuana was in the fuel tanks. “This adjustment is not intended to apply to a defe ndant who puts the government to its burden of proof at trial by denying the esse ntial factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.” § 3E1.1 comment. (n.2); see also United States v. Portillo-Valenzuela , 20 F.3d 393, 394-95 (10th Cir. 1994). Mr. Frias-Lagarda did not admit guilt and express remorse even after his conviction. Accordingly, we see no error in th e district court’s refusal to provide an adjustment for acceptance of responsibil ity.-4-

Counsel also raises the issue of court-induced inef fective assistance due to the trial court’s refusal to allow him to pursue th ree questions on re-cross examination. “We have held that ‘[i]neffective ass istance of counsel claims should be brought in collateral proceedings, not ondirect appeal. Such claims brought on direct appeal are presumptively dismissable, and virtually all will be dismissed.” United States v. Moreno , 94 F.3d 1453, 1456 (10th Cir. 1996) (citation omitted). We have recognized an exceptio n to our general rule, however, and will hear ineffectiveness claims on di rect appeal if the appellant’s “argument that he was prejudiced by his trial couns el’s actions fails as a matter of law.” Id. (footnote omitted). Our review of the trial trans cript allows us to make that determination here. Although the trial court did not allow Mr. Frias-La garda’s counsel to ask questions on re-cross, counsel called the witness i n his own case-in-chief and was allowed to examine him at length and without object ion. Accordingly, we hold as a matter of law that Mr. Frias-Lagarda was not prej udiced by the court-imposed limit on re-cross. Mr. Frias-Lagarda asserts pro se that his counsel w as ineffective in the manner in which he processed this appeal. Mr. Fria s-Lagarda contends that counsel failed to timely pursue the appeal and fail ed to raise two additional issues. It is clear from the docket sheet that cou nsel’s delay in ordering and-5-

paying for the trial transcript was inordinate. Ho wever, Mr. Frias-Lagarda has as a matter of law failed to show prejudice because hi s counsel’s delays have not resulted in our failure to consider his appeal on the merits. Likewise he cannot show prejudice from counsel’s failure to raise the additional issues. Mr. FriasLagarda has himself raised them and we have conside red them. Finally, Mr. Frias-Lagarda argues that he was deni ed a fair trial as a result of comments made by the trial court to his attorney , which Mr. Frias-Lagarda contends show the court was biased against him. [J]udicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the p arties, or their cases, ordinarily do not support a bias or partiali ty challenge. They may do so if they reveal an opinion that derives fr om an extrajudicial source; and they will do so if they reveal such a h igh degree of favoritism or antagonism as to make fair judgment i mpossible. . . . Not establishing bias or partiality, however, are e xpressions of impatience, dissatisfaction, annoyance, and even an ger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display. A judge’s ordinary efforts at courtroom administratio n--even a stern and short-tempered judge’s ordinary efforts at courtroom administration--remain immune. Liteky v. United States , 510 U.S. 540, 555-56 (1994). We have carefully reviewed the entire trial transcr ipt in this case, and we find nothing remotely approaching the high degree o f antagonism required by Liteky . To the contrary, the comments at issue here are no more than mild expressions of impatience or annoyance described bythe Supreme Court as-6-

immune from attack on the basis of bias. According ly, this claim is wholly frivolous. After careful review of the entire proceedings, we conclude that the record establishes no ground for appeal. The judgment is therefore AFFIRMED and
counsel’s motion to withdraw is GRANTED

.

ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge