* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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 

### OCT 9 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 98-6142

v. (W.D. Oklahoma) GWENDOLYN ARTESIA MURPHY,

Defendant - Appellant. (D.C. No. CR-97-210-L)

ORDER AND JUDGMENT *

Before ANDERSON , McKAY , and LUCERO , 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); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Following a guilty plea, Gwendolyn Artesia Murphy w as convicted on one count of distribution of cocaine in violation of 21 U.S.C. § 841(a)(1), and she was-2-

sentenced to two hundred sixteen months’ imprisonme nt. In this appeal, Murphy’s counsel has filed an Anders brief and a motion to withdraw. See Anders v. California , 386 U.S. 738, 744 (1967). As provided in Anders , Murphy received a copy of her counsel’s brief so that she could “raise any points that [s]he chooses.” Id. In response, Murphy has filed a letter which sets forth the following claims of error respecting her convictionand her sentence: 1) she received ineffective assistance of counsel; 2) ther e was a “discrepancy” between what she pleaded to and what was “brought into court;” 3) FBI agents failed to give her Miranda warnings; 4) the government failed to turn over th e FBI agents’ report; and 5) she was coerced into entering the pl ea agreement. She has also filed a motion for withdrawal of the Anders brief, and an additional motion for appointment of new counsel. We deny Murphy’s motio ns, affirm the conviction and sentence, and grant counsel’s motion to withdraw.

BACKGROUND According to the Presentence Investigation Report ( “PSR”), R. Vol. II, the government filed a single count information which c harged that, from early 1996 through July 28, 1997, Murphy knowingly and intenti onally possessed with intent to distribute cocaine base in violation of 21 U.S.C . § 841(a)(1). On January 6, 1998, Murphy appeared with counsel before the distr ict court for the purpose of-3-

entering a guilty plea. At that time, pursuant to Fed. R. Crim. P. 11, the court advised Murphy of the rights she was waiving by herplea. R. Vol. III at 4-7. The court also inquired about her state of mind, he r general understanding, as well as her specific understanding of the penalties which could be imposed. Id. at 9-12, 22. Finally, the court questioned her at len gth in order to determine whether the plea was voluntary and whether there was a factual basis for it. Id. at 12-16, 19-21. In response to questions by the gove rnment and the court, Murphy testified that during most of 1996 and 1997 until s he was arrested, she purchased one quarter ounce quantities of rock cocaine once or twice a week. Id. at 16-17. Although she denied selling any of the crack, she a dmitted that she shared it with friends. Id. at 18-21. The court then accepted Murphy’s plea, finding that she was competent to enter it, and that she did so voluntarily, id. at 22, and it ordered the PSR to be prepared. Id. at 22-23. Based upon Murphy’s statements to FBI agents, the PSR set the amount of crack cocaine attributable to Murphy at 1.13 kilograms, which resulted in a base offense level o f 36. R. Vol. II at 6. Murphy’s counsel filed objections to the PSR. Id. at 13-16. Those objections disputed the calculation of the drug quantity, the failure to gi ve credit for acceptance of responsibility, and the failure to recommend a downward departure. Id. At sentencing, the district court sustained Murphy’s o bjection respecting her-4-

entitlement to three points credit for acceptance o f responsibility, but it denied the other objections. R. Vol. IV at 49, 63, 67-68.

DISCUSSION As noted, Murphy’s counsel filed an Anders brief contending that his conscientious review of the record and legal resear ch led him to conclude that nothing in the record arguably supported this appeal. See Anders , 386 U.S. at 744. Pursuant to Anders , we must independently examine the record to determine whether this appeal is in fact without merit, see id. , and we also consider the specific points raised by Murphy’s response and mot ions.
A. Ineffective Assistance of Counsel . Contrary to her representations before the district court, Murphy now claims that h er counsel did not adequately explain the plea agreement to her, that he pressure d her into signing it, and that he simply told her to answer “yes” to the court’s ques tions. As the government correctly notes, generally claims of ineffective as sistance of counsel are not addressed on direct appeal. United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995). However, we find that this is one of those “rare instances [in which] an ineffectiveness of counsel claim may need no further development prior to review on direct appeal.” Id. As noted, Murphy testified on the record that no one had coerced, threatened, or promised her anythi ng in return for her plea. R.-5-

Vol. III at 13, 21. Moreover, she specifically pro fessed satisfaction with her counsel, and she repeatedly indicated her understan ding, both of the proceedings and of the consequences of her plea. Id. at 5, 8, 4-15, 22. Although such record responses may be subject to challenge under appropr iate circumstances, they “constitute a formidable barrier in any subsequent [ ] proceedings.” Blackledge v. Allison , 431 U.S. 63, 74 (1977). Murphy offers only concl usory allegations that she was “pressured” into pleading guilty, and that she failed to understand the proceedings and the consequences of that plea. Suc h allegations are insufficient to overcome the presumption of verity accorded “[s] olemn declarations in open court.” Blackledge , 431 U.S. at 74. Accordingly, we find this claim to be without merit. B. Discrepancy Between What Was Pleaded and What Was Brought In. Although Murphy’s initial response letter does n ot offer any explanation of the alleged discrepancy, her motion states that she “has factual basis for an appeal based on personal use of 1⁄4 ounce of a controlled substance instead of possession with intent to sell.” Motion for Withdrawal of Appellant’s Anders Brief. However, any such claim is clearly contradicted by Murphy’s own testimony at the plea hearing. That is, at the hearing she admi tted that she had been arrested with 5.8 grams of crack cocaine in her possession, and she further admitted that it had been her “intent to use and also to give that crack cocaine to other people .”1 We note that, at the sentencing hearing, Murphy didnot dispute the FBI

agent’s testimony that she had been advised of her Miranda rights. -6- R. Vol. III at 19 (emphasis added). Apparently, Murphy contends that her plea and conviction cannot stand without evidence that she actually sold crack cocaine. However, it is well settled that sharing drugs withanother constitutes “distribution” under § 841. See, e.g. , United States v. Hester , 140 F.3d 753, 761 (8th Cir. 1998); United States v. Washington , 41 F.3d 917 (4th Cir. 1994). To the extent that Murphy’s response may be interpr eted to contest the quantity of crack cocaine attributed to her, we con clude that the district court’s finding as to amount was well-supported both by the evidence adduced at the sentencing hearing and by Murphy’s own testimony wh en she entered her plea. Accordingly, we find this contention to be meritles s. C. Miranda Warning and Government Failure to Turn ove r FBI Report . Murphy complains that the FBI agents who questio ned her failed to give her a Miranda warning. 1 She also contends that the FBI report should have been turned over as part of the discovery process. Her guilty plea waives any such non-jurisdictional claims. United States v. Robertson , 45 F.3d 1423, 1434 (10th Cir. 1995).-7-

D. Involuntariness of Plea . Finally, Murphy contends that her plea resulted from pressure and coercion. However, as noted supra , her testimony at the time she entered the plea directly contradicts this claim. Therefore, we DENY Murphy’s motions to withdraw the Anders brief and to appoint new counsel, we AFFIRM Murphy’s convicti on and sentence, and we GRANT defense counsel’s motion to withdraw. ENTERED FOR THE COURT

Stephen H. Anderson Circuit Judge