UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

UNITED STATES OF AMERICA,

 Plaintiff - Appellee,

v.

JUAN GONZALEZ BARRAZA,

Defendant - Appellant.

No. 13-5101

(D.C. No. 4:13-CR-00047-CVE-1)

(N.D. Okla.) 

ORDER AND JUDGMENT*

Before BRISCOE, Chief Judge, EBEL and MATHESON, Circuit Judges. 

 Juan Gonzalez-Barraza pled guilty to illegal reentry in violation of 8 U.S.C. 

§§ 1326(a) and 1326(b)(2). The Presentence Investigation Report (“PSR”) assigned Mr. 

Gonzalez-Barraza a Sentencing Guidelines (the “Guidelines”) range of 30 to 37 months, 

in part because of a finding that he illegally reentered the United States in 2000 while 

serving a sentence of supervised release. See U.S.S.G. §§ 2L1.2(b)(1)(B) (increasing 

 

* After examining Appellant=s brief and the appellate record, and in accord with 

the court’s order dated February 11, 2014, this panel has determined unanimously that 

oral argument would not materially assist the determination of this appeal. See Fed. R. 

App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case 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 This order and judgment is not binding precedent, except under 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 10, 2014

Elisabeth A. Shumaker 

Clerk of Court
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base offense level “by 12 levels if the conviction receives criminal history points under 

Chapter Four”), 4A1.1(d) (assigning two criminal history points “if the defendant 

committed the instant offense while under any criminal justice sentence, 

including . . . supervised release”). At the sentencing hearing, Mr. Gonzalez-Barraza’s 

counsel neither objected to the PSR nor sought a variance or downward departure from 

this range. Instead, counsel merely requested a sentence at the bottom of Mr. GonzalezBarraza’s Guidelines range. Adopting the PSR’s findings of fact, the district court 

sentenced Mr. Gonzalez-Barraza to 30 months in prison, to be followed by three years of 

supervised release. Mr. Gonzalez-Barraza timely filed a pro se notice of appeal. This 

court appointed him counsel under the Criminal Justice Act. See 18 U.S.C. § 3006A(c). 

On this direct appeal, Mr. Gonzalez-Barraza argues he received ineffective 

assistance from sentencing counsel in two respects. First, he asserts his lawyer should 

have objected to the “unsupported factual finding” in the PSR that he illegally reentered 

the country in 2000 while still on supervised release. Aplt. Br. at 11. This error, Mr. 

Gonzalez-Barraza contends, subjected him to a Guidelines range of 30 to 37 months 

when his range instead should have been 12 to 18 months. See Aplt. Br. at 12-13 (citing 

U.S.S.G. §§ 2L1.2(b)(1)(B), 4A1.2(e)(2)). Second, Mr. Gonzalez-Barraza argues his 

lawyer should have sought a downward variance or departure based on certain Guidelines 

provisions. See 18 U.S.C. § 3553(a); U.S.S.G. § 2L1.2 cmt. nn.7-8 (allowing for 

departures based on seriousness of a prior conviction and cultural assimilation). We 

decline to consider the merits of either claim. 
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“Ineffective assistance of counsel claims should be brought in collateral 

proceedings, not on direct appeal.” See United States v. Galloway, 56 F.3d 1239, 1240 

(10th Cir. 1995) (en banc); accord Massaro v. United States, 538 U.S. 500, 506 (2003). 

Only in “rare instances”—where the record requires no further development to aid our 

review—do we even consider such claims on the merits. Galloway, 56 F.3d at 1240. 

This is not one of those instances. 

The record before us is not sufficiently developed to determine whether Mr. 

Gonzalez-Barraza’s counsel rendered deficient performance and if so, whether such 

performance prejudiced Mr. Gonzalez-Barraza. Although Mr. Gonzalez-Barraza asserts 

“there was no evidence at all to corroborate the assertion that [he] had reentered the 

country in 2000,” Aplt. Br. at 12, the record on appeal contains no evidence to the 

contrary. See United States v. Trestyn, 646 F.3d 732, 741 (10th Cir. 2011) (“The record 

before us is insufficient to enable meaningful appellate review of these claims.”). Nor are 

we inclined to consider his claim in the absence of “an opinion by the district court on the 

subject in the first instance.” Galloway, 56 F.3d at 1241; see also Trestyn, 646 F.3d at 

741 (“The district court never had an opportunity to consider those claims, much less 

develop a record on the issue.”). 

Accordingly, Mr. Gonzalez-Barraza’s claims of ineffective assistance are more 

appropriate for collateral review under 28 U.S.C. § 2255. Expressing no opinion on the 
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merits of these claims, we dismiss his instant appeal without prejudice to his right to raise 

them again in a collateral proceeding. 

ENTERED FOR THE COURT 

Scott M. Matheson, Jr. 

Circuit Judge