* After examining appellant briefs and the appellate 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 This Order and Judgment is not binding precedent, exceptunder the doctrines of law of the case, res judicata, and collateral estoppel.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 

### APR 15 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RANDY ALLEN WILLINGER, Defendant-Appellant. No. 98-2127 (D.C. No. CR 96-563 LH) (District of New Mexico)

ORDER AND JUDGMENT *

Before BRORBY , EBEL and HENRY , Circuit Judges.

Richard Willinger pled guilty to possession with in tent to distribute more than 100 grams of methamphetamine and aiding and ab etting, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) and 18 U.S.C. § 2. In the plea agreement, the United States agreed that the appropriate base offense level was 35, and that a- 2 -

3-point reduction for acceptance of responsibility was warranted, resulting in a base offense level of 32. In addition, the United States agreed that this case called for a criminal history category between III and V, and that Willinger’s sentence should not exceed 188 months imprisonment. At sentencing, the district court noted that Willin ger had filed a number of objections to the presentence report (PSR), and that those had been resolved between Willinger’s counsel and the United States. Willinger’s attorney confirmed that the parties had resolved the objecti ons and that the parties had confirmed the accuracy of the plea agreement with r espect to the calculations noted above. Accordingly, counsel advised the court that no evidentiary hearing was needed. These statements were made in Willinge r’s presence and he thereafter addressed the court without objecting to his counsel’s statements. The court then adopted the PSR without taking into cons ideration certain paragraphs as agreed by the parties. On appeal, Willinger’s counsel submits what is esse ntially an Anders brief,

see Anders v. California , 386 U.S. 738 (1967), informing us of the followin g claims Willinger wishes to raise: (1) that he was d eprived of due process because the district court sentenced him without a hearing after he objected to the findings in the PSR; and (2) that his counsel was constituti onally ineffective for failing to inform the court of Willinger’s intent to plead gui lty “to the conduct of using- 3 -

drugs of a lower grade and amount with his girlfrie nd . . . at their home and not for the economic gain conduct alleged at the 4th St reet trailer.” Counsel also informs us that Willinger “concedes the sentence re ceived was not in excess of the agreed amount in the plea agreement.” We reject Willinger’s claims. First, because his c ounsel resolved objections to the PSR with the government and infor med the court that no evidentiary hearing was needed in light of such res olution, and because Willinger himself raised no further objections at sentencing, we find his due process claim devoid of merit. Second, we dismiss Willinger’s in effective assistance claim, which should be brought in collateral proceedings r ather than on direct appeal.
See United States v. Galloway , 56 F.3d 1239, 1240, 1242 (10th Cir. 1995) (“The rule in this circuit . . . is that claims of consti tutionally ineffective counsel should be brought on collateral review, in the first petit ion filed under 28 U.S.C. § 2255.”). The district court sentence is AFFIRMED. The mandate shall issue forthwith.
ENTERED FOR THE COURT

David M. Ebel Circuit Judge