* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### JAN 8 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. JOE RENALDO ROMERO, Defendant-Appellant. No. 02-2161 (D. New Mexico) (D.Ct. No. CR-00-1235-JP)

ORDER AND JUDGMENT *

Before SEYMOUR , MURPHY , and O’BRIEN , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. On October 10, 2001, Joe Renaldo Romero was indicte d on five counts for various crimes relating to the possession and distr ibution of methamphetamine.1 In his reply brief, Romero attempts for the firsttime to challenge the

district court’s determination that he did not qual ify for the safety valve exception to the application of the statutory minimum at sent encing. He claims his appellate counsel “abandoned” him and that is why the issue w as not raised earlier. (Reply Br. at 14.) We do not consider, even under a plain error standard, issues raised for the first time in a reply brief. See United States v. Murray, 82 F.3d 361, 363 n.3 (10th Cir. 1996); United States v. Hardwell, 80 F.3d 1471, 1495 (10th Cir. 1996). Even were we to do so, the transcript of th e sentencing hearing contains sufficient facts to support the district court’s co nclusions. In addition, this is an ineffective assistance of appellate counsel claim w hich should be pursued in a different manner. See infra, Galloway, 56 F.3d at 1240

.

-2- Pursuant to a plea agreement, Romero pled guilty to one count of possession with the intent to distribute more than 500 grams of a s ubstance containing methamphetamine in violation of 21 U.S.C. §§ 841(a) (1) and (b)(1)(A). In exchange, the Government agreed, inter alia , to dismiss the remaining counts in the indictment. The district court sentenced Romer o to the statutory minimum of 120 months imprisonment followed by five years of s upervised release. In his pro se appeal, Romero contends for the first time that the Government manipulated his sentence through entrapment. He also claims in effective assistance of trial counsel because his appointed attorney failed to ra ise this issue to the district court. Further, in his reply brief, he alleges two new claims: failure to apply the safety valve provision, 1 and ineffective assistance of appellate counsel du e to “abandonment.” We affirm the sentence of the distr ict court and decline to consider the ineffective assistance of counsel clai ms.2 Romero denies he is asserting a defense of entrap ment, but merely wants

his sentence to be reconsidered in light of the Gov ernment’s conduct. To the extent he might have claimed entrapment, he has wai ved this affirmative defense -3- In June 2000, Romero twice sold methamphetamine to a confidential informant. The first sale involved approximately f ive ounces of the substance, the second approximately three ounces. In August 2 000, the confidential informant arranged with Romero to buy two kilograms of methamphetamine; the first kilogram to be delivered without payment, the second kilogram to be delivered the next day after payment for the entire transaction. The first part of the sale was completed. The next day, drug enforce ment agents arrested Romero with possession of the second kilogram prior to the completion of the sale. The second half of the transaction is the charge to whi ch Romero pled guilty. Romero claims the agents had probable cause to arre st him after the first sale in June, and the failure to do so until after he delivered the two kilograms ordered by the Government in August was a deliberat e manipulation to increase the amount of contraband, which in turn, would exte nd the length of his sentence. Romero concedes he was involved in the possession and distribution of methamphetamine, but maintains that he was not pred isposed to distribute large amounts such as the two kilograms involved in the A ugust sale. While the inquiry in determining entrapment revolves around a defendant’s predisposition to commit a crime, 2 the issue here is considered in the context of the Government’sby pleading guilty. United States v. Riles, 928 F.2d 339, 342 (10th Cir. 1991)

(“Once a defendant has plead guilty, ‘there will no t be a further trial of any kind, so that by pleading guilty . . . the defendant waiv es the right to a trial.’ By waiving the right to trial, a defendant waives non-jurisdictional defenses, including entrapment . . . . He likewise admits th at he was predisposed to commit the offense, since predisposition is ‘the crux of the entrapment defense.’”) (internal citations omitted). -4- conduct. United States v. Scull , 321 F.3d 1270, 1276 n.3 (10th Cir.) ("Other courts have addressed this issue under the rubric ‘ sentencing entrapment’ or ‘sentencing factor manipulation.’ This court addre sses the ‘same concept under the appellation of “outrageous governmental conduct .”’") (citations omitted), cert. denied, 124 S. Ct. 175 (2003). The parameters of this con cept are described in Scull : In United States v. Russell, 411 U.S. 423, 93 S. Ct. 1637, 36 L.Ed.2d 366 (1973), the Supreme Court acknowledged that the conduct of law enforcement agents in the course of investigating a n offense might be so outrageous “that due process principles would ab solutely bar the government from invoking judicial processes to obta in a conviction.” Id. at 431-32, 93 S. Ct. 1637. In determining whetherthe government has committed outrageous conduct, “the r elevant inquiry is whether, considering the totality of the circums tances in any given case, the government's conduct is so shocking, outr ageous and intolerable that it offends the universal sense of justice.” United States v. Lacey, 86 F.3d 956, 964 (10th Cir. 1996) (quotations omitted). “[T]his is an extraordinary defense rese rved for only the most egregious circumstances.” United States v. Mosley, 965 F.2d 906, 910 (10th Cir. 1992). Id . at 1277. Moreover, when a party fails to raise an issue in t he district court, we review for plain error. United States v. Easter, 981 F.2d 1549, 1555 (10th Cir.-5-

1992) (citation omitted), cert. denied, 508 U.S. 953 (1993). Plain error review, however, “is not appropriate when the alleged errorinvolves the resolution of factual disputes.” Id. at 1556. In such a case, we deem the issue waived. Id. Romero’s contention that the Government's continuedinvestigation was purely for the purpose of increasing his sentence is a fact-in tensive inquiry into the Government’s motives. Accordingly, plain error rev iew is inappropriate and Romero’s claim is waived. Even were we to address this claim, we find no merit to his contention. In the limited record provided on appeal, there is no indication the Government stepped outside the bounds of a legi timate criminal investigation. Finally, Romero claims he received ineffective assi stance of trial counsel, but concedes in his reply brief that the factual re cord is insufficient to determine the issue. In addition, in his reply brief, he cla ims his counsel “abandoned” him on appeal. Except in rare cases, a defendant must raise ineffective assistance of counsel claims in a collateral proceeding, not on d irect appeal. See United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc) (“In effective assistance of counsel claims . . . brought on direc t appeal are presumptively dismissible, and virtually all will be dismissed.”) . We follow this practice even when the record below is sufficiently developed forus to pass judgment. Id

. This rule allows the district court to provide an o pinion in the fist instance, which is “a valuable aid to appellate review.” Id. Accordingly, we decline to address-6-

Romero’s ineffective assistance of counsel claim ondirect appeal. For the reasons above, we AFFIRM Romero’s sentence.

Entered by the Court: TERRENCE L. O’BRIEN United States Circuit Judge