UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

REYES TERRONES-LOPEZ, 

 Defendant - Appellant. 

No. 15-2231 

(D.C. No. 2:15-CR-00645-JAP-1) 

(D.N.M.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before LUCERO, McHUGH, and MORITZ, Circuit Judges. 

_________________________________ 

Reyes Terrones-Lopez seeks to raise an ineffective assistance of counsel claim 

in this direct appeal. We conclude the record is insufficiently developed to resolve 

his claim. Exercising jurisdiction under 28 U.S.C. § 1291, we dismiss the appeal 

without prejudice to Terrones-Lopez raising his claim in a collateral proceeding. 

I 

Terrones-Lopez was charged with reentry of a removed alien under 8 U.S.C. 

§ 1326(a) and (b). The government offered him a fast track plea agreement, which 

would have resulted in a four-level reduction in sentencing and a sentencing range of 

either 30 to 37 or 37 to 46 months. Terrones-Lopez rejected the plea offer and pled 

 *

 This order and judgment is not binding precedent, except under the doctrines 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. 

FILED 

United States Court of Appeals

Tenth Circuit 

October 13, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

guilty to the charges in the information. At a plea hearing, a magistrate judge 

inquired into his reasons for rejecting the plea agreement. Defense counsel 

responded that she intended to seek a downward departure, which the plea agreement 

would have prohibited. 

 Defense counsel did not file a motion for downward departure. Nor did she 

file a sentencing memorandum or request an evidentiary hearing. At sentencing, the 

district court informed the parties it was adopting the findings in the presentence 

report (“PSR”). The PSR identified coercion and duress as possible grounds for a 

departure, detailing Terrones-Lopez’s allegations that he and his family had been 

subjected to death threats, kidnappings, arson, and vandalism. However, the PSR 

stated these allegations were uncorroborated and recommended a sentencing range of 

46 to 57 months. 

After the district court informed the parties of its intent to impose a sentence 

of 46 months, defense counsel asked the court to “consider something a little bit 

less,” noting the alleged arson, vandalism, death threats, and kidnappings. TerronesLopez also made a brief statement outlining his reasons for returning to the United 

States. Without further comment, the court imposed a sentence of 46 months. 

Terrones-Lopez timely appeals. 

II 

We have consistently held that “[i]neffective 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 
3 

dismissed.” United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en 

banc). This rule “encourages development of a record on the tactical reasons for trial 

counsel’s decisions, the extent of trial counsel’s alleged deficiencies, and the asserted 

prejudicial impact on the outcome of the trial.” Beaulieu v. United States, 930 F.2d 

805, 807 (10th Cir. 1991), overruled on other grounds by Galloway, 56 F.3d at 1241. 

We have reviewed ineffective assistance claims on direct appeal in rare instances, but 

only where the record was sufficiently developed to allow “fair evaluation” of the 

defendant’s claim. Id. 

 Terrones-Lopez argues that the record in this case is sufficiently developed to 

permit review of his ineffective assistance claim on direct appeal. He cites two Tenth 

Circuit cases in which we decided ineffective assistance claims on direct appeal. In 

both cases, however, the circumstances surrounding counsel’s allegedly deficient 

performance were apparent on the face of the record. See United States v. Sanchez, 

146 F.3d 796, 797-98 (10th Cir. 1998) (claim based on counsel’s alleged failure to 

detect a miscalculation of the applicable sentencing range and to object to a sentence 

exceeding applicable range); United States v. Roman, No. 97-1472, 1998 WL 

381066, at *1-2 (10th Cir. 1998) (unpublished) (claim arising from counsel’s failure 

to object to PSR as to relevant conduct). In contrast, the merits of Terrones-Lopez’s 

ineffective assistance claim cannot be resolved based on the record before us. 

Although defense counsel’s conversation with the magistrate judge reveals her 

reasons for advising Terrones-Lopez to forgo the fast track plea, we do not know the 

nature and quality of the extenuating circumstances defense counsel planned to 
4 

present to the district court; the extent of any investigation defense counsel 

conducted prior to the plea hearing; the events that occurred between TerronesLopez’s guilty plea and the sentencing hearing; or defense counsel’s reasons for not 

filing a downward departure motion. 

III 

For the foregoing reasons, we dismiss Terrones-Lopez’s ineffective assistance 

claim.1

Entered for the Court 

Carlos F. Lucero 

Circuit Judge 

 1

 Should Terrones-Lopez raise his claim in a 28 U.S.C. § 2255 petition, we 

urge the district court to consider expedited review so as to avoid the potential 

injustice that would occur if Terrones-Lopez were to complete his 46-month sentence 

prior to a judicial determination of his claim.