## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 11 1998 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. ANTHONY EDWARD SANCHEZ, a/k/a Antonio Edward Sanchez,

Defendant-Appellant. Nos. 97-1219 & 97-1233

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO (D.C. Nos. 97-CR-35-D & 96-CR-338-D)

Submitted on the briefs: Henry L. Solano, United States Attorney, Andrew A. Vogt, Assistant U.S. Attorney, Denver, Colorado, for Plaintiff-Appellee. David J. Richman of Burns, Figa, & Will, P.C., Engl ewood, Colorado, for Defendant-Appellant.

Before PORFILIO , BARRETT , and HENRY , Circuit Judges.

HENRY , Circuit Judge.-2-

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. These cases are therefore ordered submitted without oral argument. In these consolidated direct appeals, defendant arg ues 1) the district court erred in imposing a sentence exceeding the applicab le sentencing guideline range, pursuant to a Fed. R. Crim. P. 11(e)(1)(C) plea agr eement; and 2) defense counsel provided ineffective assistance at sentencing. We lack jurisdiction to review defendant’s challenge to his sentence because he do es not assert either that the sentence imposed was in violation of the law or that the sentence resulted from a misapplication of the guidelines. See 18 U.S.C. § 3742(a)(1) & (2), (c)(1). We conclude his ineffective assistance claim is withou t merit.

I. JURISDICTION TO CHALLENGE SENTENCE 18 U.S.C. § 3742 provides for only limited appellat e review of federal
sentences. See Koon v. United States , 518 U.S. 81, 96 (1996). Section 3742(c)(1) provides that, where, as here, defendantreceived the specific sentence provided by a Rule 11(e)(1)(C) plea agreement, he “ may not file a notice of1 Subsections (a)(3) and (4) of § 3742 allow an appea l from a sentence

that “is greater than the sentence specified in the applicable guideline range [or] was imposed for an offense for which there is no se ntencing guideline and [the sentence] is plainly unreasonable.” -3- appeal” under § 3742(a)(3) or (4). 1 See United States v. Denogean , 79 F.3d 1010, 1013 (10th Cir. 1996); cf. United States v. Veri , 108 F.3d 1311, 1315 (10th Cir. 1997) (where defendant received sentence called forin Rule 11(e)(1)(C) plea agreement, this court did not have appellate jurisd iction to review sentence). A defendant receiving a sentence under a Rule 11(e) (1)(C) plea agreement may appeal only when his sentence “was imposed in v iolation of law [or] was imposed as a result of an incorrect application of the sentencing guidelines,” 18 U.S.C. § 3742(a)(1) & (2). See Denogean , 79 F.3d at 1013-14. In this appeal, defendant does not argue that his sentence was in v iolation of law. See, e.g. , United States v. Littlefield , 105 F.3d 527, 528 (9th Cir.) (sentence within statutory maximum did not violate law for purposes of § 3742(a)), cert. denied , 117 S. Ct. 2423 (1997).. Nor does he assert that the sentence imposed result ed from a misapplication of the guidelines. When initially proposed, the pa rties mistakenly believed, and the plea agreement erroneously indicated, that the 206-month sentence provided in the agreement was within the applicable guidelin e range. Nonetheless, at the time the district court accepted the plea agreementat the sentencing hearing, all-4-

parties were aware that, under the proper applicati on of the guidelines, the 206-month sentence was actually in excess of the ap plicable sentencing range. Defendant had the opportunity to withdraw his plea in light of the initial miscalculation of the sentencing range, but he decl ined to do so and again agreed to the imposition of the 206-month sentence. See United States v. Libretti , 38 F.3d 523, 529-30 (10th Cir. 1994) (holding defendant was bound by plea agreement, where district court thoroughly assessedwhether defendant understood consequences of guilty plea), aff’d , 516 U.S. 29 (1995). On appeal, therefore, defendant challenges only the propriety of the district court’s imposition of a sentence in excess of the applicable guideline range, pursuant to the express terms of the Rule 11(e)(1)( C) agreement. Section 3742(c)(1) specifically precludes defendant’s appea l based upon this issue. See United States v. Trujeque , 100 F.3d 869, 870 (10th Cir. 1996) (in dicta); Un ited States v. Prieto-Duran , 39 F.3d 1119, 1120 (10th Cir. 1994).

II. INEFFECTIVE ASSISTANCE OF COUNSEL Defendant also argues that defense counsel provided ineffective assistance at sentencing by failing to detect the errors in th e initial calculation of the sentencing range and in failing to object to the di strict court’s imposition of a sentence in excess of the applicable guideline rang e. Deeming these claims to be-5-

the “rare [ineffective assistance] claims which are fully developed in the record [and which thus] may be brought . . . on direct app eal,” United States v. Galloway , 56 F.3d 1239, 1242 (10th Cir. 1995) (en banc), we conclude defendant is not entitled to relief because he is unable to s how the requisite prejudice resulting from counsel’s purportedly ineffective re presentation, see Strickland v. Washington , 466 U.S. 668, 692 (1984). Cf. United States v. Carter , 130 F.3d 1432, 1442 (10th Cir. 1997) (counsel did not provid e ineffective assistance where defendant, “armed with full knowledge of the ramifi cations of his decision,” rejected plea agreement), petition for cert. filed (U.S. Apr. 20, 1998) (No. 97-8838). We, therefore, DISMISS defendant’s claim challengin g his sentence, for lack of appellate jurisdiction, and otherwise AFFIRM the judgment of the United States District Court for the District of Colorado.