* After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. This Order and Judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel.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. 

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

### AUG 18 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BONNITA PEARL JORDAN, Originally indicted as Bonita Pearl Jordan then amended on 8-15-97 to reflect true name of Bonnita Pearl Jordan, Defendant-Appellant. No. 97-5243 (D.C. No. 97-CR-73-K) (N.D. Okla.)

ORDER AND JUDGMENT *

Before BALDOCK , EBEL and MURPHY , Circuit Judges.

On August 15, 1997, Bonnita Pearl Jordan (“Jordan”) pled guilty to a single count of making a false statement to a gover nment agency, in violation of1 Jordan’s has court-appointed counsel. Counsel has f iled an amended Anders brief in this appeal, stating that Jordan’s challe nge of the district court’s decision not to grant her a downward departure is f rivolous, and moving to withdraw as Jordan’s legal counsel. The Anders brief also notes that in its plea colloquy with Jordan, the district court did not al ert Jordan to the possibility of restitution. However, this claim would only impacton the voluntariness of Jordan’s plea, and Jordan’s counsel has indicated i n the amended Anders brief that Jordan does not challenge the voluntariness of her guilty plea. Moreover, the issues raised in Jordan’s pro se brief all speak to issues related to her sentence, and not her guilty plea, including her ineffective assistance of counsel claim. Therefore, we will not address the issue of restitution. We hereby grant counsel’s motion to withdraw as Jor dan’s counsel. - 2 - 18 U.S.C. § 1010. ( See PSR at 1; Plea Hearing Trans. at 10-16, 19-22.) O n December 9, 1997, the district court sentenced Jord an to 14 months’ imprisonment, to be followed by a one-year term of supervised release. ( See Aplt. App. Vol. III at 27 (Sentencing Hearing Trans .).) The district court also ordered Jordan to pay $6,000 in restitution. ( See id. ) Jordan now appeals, pro

se, 1 claiming that (1) the district court erred in ref using to grant her a downward departure on the ground of an extraordinary physica l condition, under United States Sentencing Guideline (U.S.S.G.) § 5H1.4; (2) the government submitted erroneous and false information to the district cou rt, in violation of Federal Rule of Criminal Procedure (Fed. R. Crim. P.) 32, and (3 ) that she received ineffective assistance of counsel at sentencing. As for Jordan’s claim that the district court erredin failing to grant her a downward departure under U.S.S.G. § 5H1.4, it is we ll-established law in this- 3 -

circuit that this court has jurisdiction to review the decision of a district court not to grant a downward departure under the Guidelines only where the district court unequivocally states that it lacks the “authority t o depart from the sentencing guideline range for the entire class of circumstanc es proffered by the defendant.” United States v. Castillo , 140 F.3d 874, 887 (10th Cir. 1998). We find no s uch statement by the district court on the record befor e us. Therefore, we dismiss Jordan’s claim under U.S.S.G. § 5H1.4 for lack of j urisdiction. We read Jordan’s claim that the government submitte d erroneous and false information to the district court in violation of F ed. R. Crim P. 32, to allege that false and erroneous information was included by the prosecution in Jordan’s Presentence Report (PSR). However, prior to her se ntencing hearing, Jordan filed only two objections to the PSR, one to the PS R’s finding of the specific offense characteristic of more than minimal plannin g and one to the probation officer’s notation that “[p]resentation of informat ion in this section does not necessarily constitute a recommendation by the prob ation officer for a departure.” (See PSR Add.) Neither objection goes to Jordan’s clai m on appeal that the PSR was factually inaccurate. Failure to object to fac ts in the PSR or to the court’s specific finding with respect to those facts acts a s an admission of the facts contained in the PSR, thus challenge of those facts is not preserved for appeal.
See United States v. Deninno , 29 F.3d 572, 580 (10th Cir. 1994). Because- 4 -

Jordan did not object to any of the factual stateme nts contained in her Presentence Report before her sentencing hearing, and because at that hearing the district court adopted the factual findings of the Presentence Rep ort as its own factual findings ( See Sent. Hearing Trans. at 17), she may not now attac k the facts contained in her PSR on appeal. Finally, as for Jordan’s claim that her Sixth Amend ment rights were violated due to ineffective assistance of counsel, it is clearly-established law in this Circuit that such claims are not properly hear d by this court on direct appeal, but rather by collateral attack. See United States. v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). For this reason, we dismiss Jordan’s ineffective assistance of counsel claim without pre judice. For the above reasons, Jordan’s sentence is AFFIRME D and her claim of ineffective assistance of counsel is DISMISSED WITH OUT PREJUDICE.

The mandate shall issue forthwith.
ENTERED FOR THE COURT

David M. Ebel Circuit Judge