* This order and judgment is not binding precedent, e xcept under the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

### OCT 14 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. MACARIO GALVEZ-ROJAS,

Defendant - Appellant. No. 03-2018 (D. Ct. No. CR-02-1360 JC) (D. N. Mex.)

ORDER AND JUDGMENT *

Before TACHA , Chief Circuit Judge, MCKAY and MCCONNELL , 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. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered sub mitted without oral argument. Defendant-Appellant Macario Galvez-Rojas, on directappeal, moves to vacate his sentence due to ineffective assistance o f counsel. We exercise-2-

jurisdiction pursuant to 28 U.S.C. § 1291. Because we find that this claim should be brought on collateral review, we DENY this motio n. On August 22, 2002, Mr. Galvez pleaded guilty to on e count of violating 8 U.S.C. § 1326(b), illegal reentry into the United S tates after removal subsequent to a felony conviction. On December 5, 2002, the d istrict court convened a sentencing hearing for Mr. Galvez at which the dist rict court requested that Mr. Galvez’s counsel provide any authority permitting adownward sentence departure under the Sentencing Guidelines. After receiving aday from the court to conduct the necessary research, counsel failed to find this legal authority. Judge Downes then sentenced Mr. Galvez to forty-six months, the minimum sentence permissible under the Sentencing Guidelines without a downward departure. After filing a timely notice of appeal, Mr. Galvez’s trial attorne y filed a motion to withdraw as counsel, citing the omission of material matters fr om presentation at sentencing. The motion was granted. On appeal, Mr. Galvez brings an ineffective assista nce of counsel claim. He alleges that his trial counsel’s failure to prov ide any legal authority permitting a downward sentence departure represents deficient performance that prejudiced his defense. He does not directly challenge the la ck of a downward sentence departure. Instead, he alleges that his attorney’s failure to present any legal authority supporting a downward departure provides an independent ground for1 The petitioner also cites United States v. Harfst , 168 F.3d 398, 404 (10th

Cir. 1999), to argue for direct review of this matter. Harfst , however, pertains to (continued...) -3- finding ineffective assistance of counsel. As Mr. Galvez states, “The issue before this Court is not the merits of any downward departure motion, which admittedly would require more factual development, but the simpler issue of whether under the circumstances here, the failure to seek a departure fell below an objectively reasonable standard and prejudiced Mr. Galvez.” We decline to reach the merits of Mr. Galvez’s inef fective assistance of counsel claim on direct appeal. “Ineffective assis tance of counsel claims should be brought in collateral proceedings, not on directappeal. Such claims brought on direct appeal are presumptively dismissible, and virtually all will be dismissed.” United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). Mr. Galvez, while acknowledging the rarity of direc t review of ineffective assistance of counsel claims, asserts that the pres ent case merits an exception to the general rule because: (1) a sufficient record e xists and (2) no tactical reason exists for counsel’s failure to present any authori ty supporting a downward departure. Neither rationale persuades us to consi der this claim on direct appeal. Mr. Galvez relies primarily on United States v. Gallegos , 108 F.3d 1272 (10th Cir. 1997), to support his appeal. 1 Gallegos , however, differs from the1 (...continued)

a collateral review of an ineffective assistance of counsel claim and, therefore, is inapposite for our analysis here. Moreover, we are not persuaded by Mr. Galvez’s citations to our fellow circuit courts of appeals. -4- present case in one important regard. In Gallegos , we agreed to hear the ineffective assistance issue on direct appeal becau se the petitioner “asserted her . . . ineffective assistance of counsel claim [] at t rial and in a post-trial motion . . . . , [which are] well-documented in the record . . . . ” Id. at 1280. “As recognized in Galloway , effective review of ineffective assistance of cou nsel claims requires that a factual record be developed in and addressed by the district court in the first instance.” United States v. Alexander , 292 F.3d 1226, 1229 (10th Cir. 2002) (citations omitted). In the present case, however, Mr. Galvez failed to raise his ineffective assistance of counsel claim either at t rial or by post-trial motion, thereby denying the district court the possibility of addressing the issue. We do not find that Mr. Galvez’s asserted grounds f or an exception to the Gallowayrule exist on direct appeal. First, a sufficient record does not exist in the present case to address adequately the ineffect ive assistance of counsel claim on direct review. Second, without this record we c annot evaluate whether Mr. Galvez’s trial counsel lacked a tactical rationale for his conduct. In short, to succeed on an ineffective assistance of counsel cla im, Mr. Galvez “must show that counsel's performance was deficient . . . . [ and] that the deficient-5-

performance prejudiced the defense.” Strickland v. Washington , 466 U.S. 668, 687 (1984). No such showing is made here. Applying our holding in United States v. Galloway , 56 F.3d 1239 (10th Cir. 1995) (en banc), we DENY Mr. Galvez’s motion to vac ate his sentence. We also DENY his request to appoint counsel to help him pre pare a habeas petition. ENTERED FOR THE COURT,

Deanell Reece Tacha Chief Circuit Judge