* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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 

### APR 2 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. JOSE LUIS SANCHEZ-LLAMAS,

Defendant - Appellant. No. 01-1128 (D. Ct. No. 00-CR-436-N) (D. Colo.)

ORDER AND JUDGMENT *

Before TACHA , Chief Circuit Judge, HOLLOWAY , and McKAY Circuit Judges.
After examining the briefs and the appellate record , this three-judge panel has determined unanimously that oral argument wouldnot be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered sub mitted without oral argument.- 2 - I. Background Defendant Jose Luis Sanchez-Llamas appeals the district court’s determination that he was a minor, rather than a mi nimal, participant in the drug transaction for which he was convicted and its corr esponding reduction of his sentence by two, rather than four, levels. We exer cise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 and AFFIRM. We dismiss without prejudice defendant’s ineffective assistance of counsel claim

. II. Discussion A. Waiver of Appellate Review of the Factual Determi nation Regarding Defendant’s Role in the Offense The district court’s determination as to whether Mr . Sanchez-Llamas was a minor or a minimal participant in the drug sale at issue is a factual one, reviewable for clear error. United States v. Garcia , 182 F.3d 1165, 1175 (10th Cir. 1999). Even clear error review is inappropriate, however, when defendant fails to preserve the issue on appeal. United States v. Richardson , 86 F.3d 1537, 1554 (10th Cir. 1996) (“‘Failure to object to a f act in a presentence report, or failure to object at the [sentencing] hearing, acts as an admission of fact.’”) (quoting United States v. Deninno , 29 F.3d 572, 580 (10th Cir. 1994)). A narrow exception to the general waiver rule permits appell ate review where the district court’s reliance on the Presentence Report (“PSR”) is itself plain error. See- 3 -

United States v. Ivy , 83 F.3d 1266, 1297 (10th Cir. 1996). To constitute plain error, a district court’s decision must be “‘partic ularly egregious,’ as well as ‘obvious and substantial.’” United States v. Saucedo , 950 F.2d 1508, 1511 (10th Cir. 1991) (citations and quotations omitted). The PSR relied upon by the district court indicated that, given his degree of participation in the transaction, Mr. Sanchez-Llama s was a minor participant eligible for a two-level reduction in sentence, rat her than the four-level reduction appropriate for a minimal participant. It is undis puted that Mr. Sanchez-Llamas failed to object to the PSR’s characterization of h is role in the offense. As a result, Mr. Sanchez-Llamas waived the issue on appe al. Mr. Sanchez-Llamas’ argument therefore depends uponthe narrow exception permitting appellate review of a districtcourt’s determination as to the defendant’s level of participation in the offense e ven after defendant waives the issue at trial by failing to object to facts in the PSR. For us to apply this exception, we must find that the district court’s r eliance upon the PSR—to which the defendant himself did not object—was plain erro r. Ivy , 83 F.3d at 1297. If the district court erred, we cannot say that its er ror was either obvious, egregious, or substantial, Saucedo , 950 F.2d at 1511, especially in light of the factthat defendant’s failure to object to the PSR at trial p revented the development of a factual record upon which to base such a determinat ion, cf. United States v.- 4 -

Easter , 981 F.2d 1549, 1556 (10th Cir. 1992) (“plain erro r review is not appropriate when the alleged error involves resolut ion of factual disputes”). We hold, therefore, that Mr. Sanchez-Llamas waived the issue of whether he was a minor or a minimal participant in the offense and t hat the narrow exception allowing appellate review after such waiver does no t apply. B. Ineffective Assistance Mr. Sanchez-Llamas argues in the alternative that h is trial counsel was ineffective for failing to request the four-level r eduction in sentence to which Mr. Sanchez-Llamas now argues he was entitled. We do not ordinarily consider ineffectiveness claim s on direct appeal because the record on direct appeal is insufficient ly developed as to “the tactical reasons for trial counsel’s decisions, the extent o f trial counsel’s alleged deficiencies, and the asserted prejudicial impact o n the outcome of the trial.” Beaulieu v. United States , 930 F.2d 805, 807 (10th Cir. 1991), overruled in part by United States v. Galloway , 56 F.3d 1239, 1241 (10th Cir. 1995). Such claims are more appropriately brought by collateral attackunder 28 U.S.C. § 2255 because that mechanism permits the determination of these essential facts. Galloway , 56 F.3d at 1240. We dismiss virtually all such c laims without prejudice to permit both the appellant and his or h er trial counsel to develop the appropriate facts for consideration by the districtcourt. See id. at 1240.- 5 -

For these reasons, and despite the fact that both t he government and Mr. Sanchez-Llamas urge us to reach the merits of his i neffective assistance claim, we dismiss it without prejudice. ENTERED FOR THE COURT,

Deanell Reece Tacha Chief Circuit Judge