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). Th e Presentence Investigation Report (“PSR”) assigned Mr. Gonzalez-Barraza a Sentencing Gu idelines (the “Guidelines”) range of 30 to 37 months, in part because of a finding that he illega lly 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 re cord, and in accord with the court’s order dated February 11, 2014, th is 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 Ci r. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judg ment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 w ith 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-2- base offense level “by 12 levels if the convic tion receives criminal history points under Chapter Four”), 4A1.1(d) (assigning two crim inal history points “if the defendant committed the instant offense while unde r any criminal justice sentence, including . . . supervised release”). At th e 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 requeste d 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. Gon zalez-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-B arraza argues he received ineffective assistance from sentencing counsel in two resp ects. First, he asserts his lawyer should have objected to the “unsupport ed factual finding” in the PS R that he illegally reentered the country in 2000 wh ile 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 ha ve 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 varian ce 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 me rits of either claim.-3- “Ineffective assistance of counsel cl aims 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”—wher e 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 sufficien tly developed to determine whether Mr. Gonzalez-Barraza’s counsel rendered deficien t performance and if so, whether such performance prejudiced Mr. G onzalez-Barraza. Although M r. 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, 74 1 (10th Cir. 2011) (“The record before us is insufficient to en able meaningful appellate review of these claims.”). Nor are we inclined to consider his claim in the abse nce 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 neve r had an opportunity to cons ider 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. Ex pressing no opinion on the-4- merits of these claims, we dism iss his instant appeal without pr ejudice to his right to raise them again in a collateral proceeding.
ENTERED FOR THE COURT

Scott M. Matheson, Jr. Circuit Judge