* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or coll ateral 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 

### APR 20 1999 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. NICOLAS GARCIA-VILLAPANDO, Defendant-Appellant. No. 98-1336 (D.C. No. 98-CR-143-ALL) (Colorado)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BALDOCKand HENRY , 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)(2); 10th Cir. R. 34.1(G). T he cause is therefore ordered submitted without oral argument.-2-

Nicolas Garcia-Villapando appeals from the sentence imposed after his plea of guilty to unlawfully reentering the United State s after deportation for an aggravated felony in violation of 8 U.S.C. §§ 1326( a) and (b)(2). Counsel appointed to represent defendant on appeal filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). For the reasons set out belo w, we dismiss the appeal. The facts supporting defendant’s guilty plea are se t forth in the Plea Agreement and Statement of Facts Relevant to Senten cing. The plea agreement anticipated a sentencing guideline range of 77 to 9 6 months. Defendant’s trial counsel filed a Motion for Downward Departure, argu ing that the district court should exercise its discretion to depart downward u nder the authority of United States v. Lipman , 133 F.3d 726 (9th Cir. 1998), based on defendants ’s “cultural assimilation” into the United States. The districtcourt recognized it had discretion to depart downward but declined to do so , sentencing defendant to 77 months imprisonment. Trial counsel filed a notice of appeal on defendant ’s behalf and moved to withdraw. New counsel was appointed to represent d efendant on appeal. Anders holds that if counsel finds a case to be wholly fri volous after conscientious examination, he should so advise the court and requ est permission to withdraw. Counsel must in addition submit to both the court and his client a brief referring-3-

to anything in the record arguably supportive of th e appeal. The client may then raise any points he chooses, and the appellate court thereafter undertakes a complete examination of all proceedings and decides whether the appeal is, in fact, frivolous. If it so finds, it may grant coun sel’s request to withdraw and dismiss the appeal. See id. at 744. In his Anders brief, counsel raises three possible points: the d istrict court’s refusal to depart downward; ineffective assistance of counsel; and defendant’s argument that prior INS deportation procedures were not constitutional. Defendant was notified of his right to file a pro s e brief, and he has not chosen to do so. Accordingly, we turn to an examination of the proceedings below to determine if the appeal is wholly frivolous. The district court refused to grant defendant a dow nward departure. In so doing, the court clearly recognized that it had the discretion to depart downward but declined to do so. Because the court acknowled ged its authority to grant such a departure, we have no jurisdiction to review its decision refusing to exercise that authority. See United States v. Castillo , 140 F.3d 874, 887-89 (10th Cir. 1998); United States v. Rodriguez , 30 F.3d 1318, 1319 (10th Cir. 1994). We have carefully examined the record to ascertain whether any other ground exists to support a challenge to defendant’s sentence. We find nothing in the record to indicate that the sentence imposed wa s in violation of the law or the-4-

result of a misapplication of the guidelines. Acco rdingly, we are without jurisdiction to consider such a challenge. See United States v. Sanchez , 146 F.3d 796, 796-97 (10th Cir. 1998); 18 U.S.C. § 3742(a). To the extent that Mr. Garcia-Villapando’s notice o f appeal can be viewed as an assertion that his counsel was ineffective, the issue must be raised collaterally rather than on direct appeal. See United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). We pointed out in Gallowaythat such claims brought on direct appeal are presumptively d ismissible because most ineffectiveness claims need further record developm ent. Id. Although we recognized that in rare instances the merits of an ineffectiveness claim may be reviewed on direct appeal because the claim needs n o further development, id. , that rare exception is clearly not applicable here. To the extent defendant wishes to raise ineffective assistance of counsel, therefo re, the claim must be pursued in a collateral proceeding. Defendant asserts in his docketing statement that the INS deportation proceedings did not pass constitutional muster, the reby making the actual charges against him invalid. He did not raise this issue i n the trial court. Counsel has reviewed the record for any support for defendant’s stated issue and has been unable to find anything to indicate to what defenda nt may be referring. Moreover, “[w]e will not consider any argument rais ed for the first time on-5-

appeal.” See United States v. Mendoza-Lopez , 7 F.3d 1483, 1485 n.2 (10th Cir. 1993). After review of the entire proceedings, we conclude that the record establishes no non-frivolous ground for appeal. Th e appeal is therefore
DISMISSED and counsel’s motion to withdraw is GRANTED

. ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge