* After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance in the

determination of this appeal. See Fed. R. App. P. 34(a); 10th CIR. R. 34.1(G). The cause

is therefore ordered submitted without oral argument. This order and judgment is not

binding precedent except under the doctrines of law of the case, res judicata and collateral

estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App.

P. 32.1 and 10th CIR. R. 32.1.

Mr. Pacheco-Huizar filed his March 30, 2007 notice of appeal four days 1

after the sentencing hearing, but prior to the entry of judgment. Pursuant to Federal Rules

of Appellate Procedure, 4(b)(2), “[a] notice of appeal filed after the court announces a

(continued...)

FILED

United States Court of Appeals

Tenth Circuit

November 6, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOSE GUSTABO PACHECO-HUIZAR,

Defendant - Appellant.

No. 07-1139

(D.C. No. 06-CR-335-MSK)

(D. Colo.)

ORDER AND JUDGMENT

*

Before HENRY, TYMKOVICH, and HOLMES, Circuit Judges. 

Defendant-Appellant Jose Gustabo Pacheco-Huizar, a federal prisoner proceeding

pro se, appeals from his conviction and sentence for one count of illegal reentry

subsequent to deportation for an aggravated felony, in violation of 8 U.S.C. §§ 1326(a)

and (b)(2). He has timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291, 1
(...continued) 1

decision, sentence, or order – but before the entry of the judgment or order – is treated as

filed on the date of and after the entry.” See generally United States v. Green, 847 F.2d

622, 623 (10th Cir. 1988) (en banc). Therefore, we treat the March 27, 2007 notice of

appeal as having been filed on April 3, 2007, the date on which the district court entered

judgment. 

2

and we dismiss the appeal. 

I. BACKGROUND

In 1995, Mr. Pacheco-Huizar was convicted of an offense classified, pursuant to 8

U.S.C. § 1101(a)(43), as an aggravated felony – possession with intent to distribute a

schedule II controlled substance. He was subsequently deported. According to Mr.

Pacheco-Huizar, he later reentered the United States because the immigration judge told

him, during his 1996 deportation hearing, that he could reenter the United States after five

years.

Although initially pleading not guilty, on January 2, 2007, Mr. Pacheco-Huizar

changed his plea to guilty. The government agreed to recommend a sentence at the

bottom of the applicable advisory Guidelines range. At sentencing, neither the

government nor Mr. Pacheco-Huizar objected to the facts or to the sentencing

calculations in the presentence report. Further, Mr. Pacheco-Huizar sought no departures

or variances from the recommended sentence. After hearing argument and applying the

appropriate sentencing factors, the district court sentenced Mr. Pacheco-Huizar to fortyseven months’ imprisonment – the bottom of the applicable advisory Guideline range – to

be followed by three years of supervised release. Mr. Pacheco-Huizar then filed a notice
The assistant federal public defender that we appointed to act as Mr. 2

Pacheco-Huizar’s appellate counsel also represented him in the district court.

See Anders v. California, 386 U.S. 738 (1967). 3

3

of appeal. 

Mr. Pacheco-Huizar’s counsel, filed an Anders brief “conclud[ing] that this 2 3

appeal is frivolous in that there is no challenge to the validity of the defendant’s guilty

plea nor to the defendant’s sentence, which is at the bottom of the advisory guideline

range.” Anders Br. at 2. Mr. Pacheco-Huizar, in a supplemental brief, states that his

appeal is based on his counsel’s ineffectiveness for failing to challenge the 1996

deportation order as he was deprived of his constitutional rights during the deportation

hearing. See Supplemental Brief in Support of Appellant’s Opening Brief, at 4, 6-7.

II. DISCUSSION

“Ineffective assistance of counsel claims should be brought in collateral

proceedings, not on direct appeal. Such claims brought on direct appeal are

presumptively dismissible, and virtually all will be dismissed.” United States v. Samuels,

493 F.3d 1187, 1193 (10th Cir. 2007) ((quoting United States v. Galloway, 56 F.3d 1239,

1240 (10th Cir.1995)) (en banc)). This rule assures that we review ineffective assistance

of counsel claims only when the factual record is fully developed. United States v.

Brooks, 438 F.3d 1231, 1242 (10th Cir. 2006). Although we may undertake a review in

the rare case where the record is sufficiently developed, see Samuels, 493 F.3d at 1193,

this is not one of those rare cases. Moreover, even assuming the record was adequately
4

developed, we would be reluctant to undertake review because “[a]n opinion by the

district court is a valuable aid to appellate review for many reasons, not the least of which

is that in most cases the district court is familiar with the proceedings and has observed

counsel's performance, in context, firsthand.” Brooks, 438 F.3d at 1242 (internal

quotation marks omitted) (quoting Galloway, 56 F.3d at 1240). 

III. CONCLUSION

Because Mr. Pacheco-Huizar’s claims of ineffective assistance of counsel are

premature, the appeal is DISMISSED.

Entered for the Court

Jerome A. Holmes

Circuit Judge