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 ineffe ctive assistance of counsel claim in this direct appeal. We conclude the re cord is insufficiently developed to resolve his claim. Exercising jurisd iction under 28 U.S.C. § 129 1, 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 govern ment offered him a fast tr ack plea agreement, which would have resulted in a four-level reducti on in sentencing and a sentencing range of either 30 to 37 or 37 to 46 months. Terr ones-Lopez rejected th e plea offer and pled

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court2 guilty to the charges in the information. At a plea he aring, a magistrate judge inquired into his reasons for rejecting the plea agreement. Defense counsel responded that she intended to seek a downw ard departure, which the plea agreement would have prohibited. Defense counsel did not fi le a motion for downward departure. Nor did she file a sentencing memorandum or request an evidentiary hearing. At sentencing, the district court informed th e parties it was adopting the findings in the presentence report (“PSR”). The PSR identified coer cion 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 uncorroborat ed and recommended a sentencing range of 46 to 57 months. After the district court info rmed the parties of its in tent to impose a sentence of 46 months, defense counsel asked the c ourt to “consider so mething a little bit less,” noting the alleged arson, vandalism, death threats, and kidnappings. TerronesLopez also made a brief statement outlini ng his reasons for returning to the United States. Without further comment, the c ourt imposed a sentence of 46 months. Terrones-Lopez timely appeals.
II We have consistently held that “[i]neffective assi stance of counsel claims should be brought in collate ral proceedings, not on direct appeal. Such claims brought on direct appeal ar e presumptively dismissible, and virtually all will be3 dismissed.” United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). This rule “encourages development of a record on the tacti cal reasons for trial counsel’s decisions, the extent of trial counsel’s alleged de ficiencies, and the asserted prejudicial impact on the outcome of the tria l.” Beaulieu v. United States, 930 F.2d 805, 807 (10th Cir. 1991), overruled on othe r grounds by Galloway, 56 F.3d at 1241. We have reviewed ineffective assistance claims on direct a ppeal in rare instances, but only where the record was su fficiently developed to allo w “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 d ecided ineffective assistance cl aims on direct appeal. In both cases, however, the circumstances surr ounding counsel’s al legedly deficient performance were apparent on the face of th e record. See United States v. Sanchez, 146 F.3d 796, 797-98 (10th Ci r. 1998) (claim based on c ounsel’s alleged failure to detect a miscalculation of the applicable sentencing range and to object to a sentence exceeding applicable range); United Stat es 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 releva nt conduct). In contrast, th e merits of Terrones-Lopez’s ineffective assistance claim cannot be re solved based on the record before us. Although defense counsel’s conversation with the magi strate judge reveals her reasons for advising Terrones-L opez to forgo the fast track plea, we do not know the nature and quality of the extenuating circ umstances defense counsel planned to4 present to the district c ourt; the extent of any inve stigation defense counsel conducted prior to the plea hearing; th e events that occu rred between TerronesLopez’s guilty plea and the sentencing heari ng; or defense counsel ’s reasons for not filing a downward departure motion.
III For the foregoing reasons, we dismiss Te rrones-Lopez’s ineffective assistance claim. 1

Entered for the Court

Carlos F. Lucero Circuit Judge

1 Should Terrones-Lopez raise his clai m in a 28 U.S.C. § 2255 petition, we urge the district court to consider expe dited review so as to avoid the potential injustice that would occur if Terrones-Lop ez were to complete his 46-month sentence prior to a judicial dete rmination of his claim.