F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                 UNITED STATES COURT OF APPEALS                           June 3, 2005

                                 TENTH CIRCUIT                          PATRICK FISHER
                                                                              Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 04-3087
 v.                                          (D.C. No. 02-CR-10140-20-MLB)
                                                         (Kansas)
 VICTOR MANCILLAS,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Victor Mancillas was charged with one count of conspiracy to distribute

500 grams or more of a mixture or substance containing a detectable amount of

cocaine in violation of 21 U.S.C. § 846, one count of distribution of

approximately 218 grams of methamphetamine in violation of 21 U.S.C. §

      *
       After examining appellant’s brief and the appellate record, 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 submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
841(a)(1) and 18 U.S.C. § 2, and eight counts of using a communication facility

to facilitate the distribution of a controlled substance in violation of 21 U.S.C. §

843(b). After a jury trial, Mr. Mancillas was found guilty on all counts and

sentenced to a mandatory minimum term of ten years incarceration pursuant to 21

U.S.C. § 841(b)(1)(A). Mr. Mancillas’ counsel filed a brief pursuant to Anders v.

California, 

(1967), and moved for leave to withdraw as counsel.

For the reasons set out below, we deny counsel’s motion to withdraw and remand

the case to the district court.

       Anders holds that if counsel finds a case to be wholly frivolous after

conscientious examination, he may so advise the court and request permission to

withdraw. 

Counsel must also submit to both the court and his client a

brief referring to anything in the record arguably supportive of the appeal. 

may then raise any point he chooses, and the court thereafter

undertakes a complete examination of all proceedings and decides whether the

appeal is in fact frivolous. 

so finds, it may grant counsel’s request to

withdraw and dismiss the appeal. 

Anders, counsel provided Mr.

Mancillas with a copy of his appellate brief. Mr. Mancillas was given an

opportunity to respond, which he did by filing a pro se reply brief raising several

issues.

       Mr. Mancillas first contends the government failed to present sufficient


                                          -2-
evidence to sustain his conviction. This court reviews de novo a sufficiency of

the evidence challenge. United States v. Hanzlicek, 

, 1239 (10th

Cir. 1999). In advancing such a challenge, Mr. Mancillas is “faced with a high

hurdle.” United States v. Voss, 

, 1524 (10th Cir. 1996). This court

must examine the evidence adduced at trial in the light most favorable to the

government, determining only whether any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt. 

. We must consider both direct and circumstantial evidence, as well

as any reasonable inferences to be drawn from that evidence. United States v.

Davis, 

, 1017 (10th Cir. 1993). Furthermore, in resolving such a

challenge, we do not weigh conflicting evidence or consider the credibility of

witnesses. United States v. Pappert, 

, 1077 (10th Cir. 1997). It is

the jury’s prerogative as fact finder to resolve conflicting testimony, weigh the

evidence, and draw inferences from the facts presented. United States v. Nieto,

, 1469 (10th Cir. 1995). A review of the trial record under these

standards convinces us the evidence was more than sufficient for a reasonable

juror to find Mr. Mancillas guilty on all charges. 1


      1
        At sentencing, Mr. Mancillas complained that his apartment had been
illegally searched by the police. Rec. vol. V, at 7. The exclusionary rule bars the
admission of physical evidence and live testimony obtained directly or indirectly
through the exploitation of unconstitutional police conduct. Wong Sun v. United
States, 

, 485-88 (1963); United States v. Lin Lyn Trading, Ltd., 149

                                          -3-
      Mr. Mancillas also contends the admission of telephone transcripts into

evidence constitutes error because the transcripts were not accurately transcribed

from Spanish to English. Mr. Mancillas did not move for the suppression of the

recordings or transcripts prior to trial, nor did he object to their admission into

evidence at trial. Generally, the failure to object to the admissibility of evidence

constitutes a waiver of the issue absent plain error. United States v. Jones, 

, 875 (10th Cir. 1995). Before an appellate court can correct an error not

raised at trial, there must be (1) “error,” (2) that is “plain,” and (3) that “affect[s]

substantial rights.” United States v. Olano, 

, 732 (1993). If all three

conditions are met, we may then exercise our discretion to notice a forfeited error,

but only if (4) “the error seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.” 

      “The admission of transcripts to assist the trier of fact lies within the

discretion of the trial court.” United States v. Gomez, 

, 1526 (10th

Cir. 1995) (citing United States v. Mayes, 

, 462 (10th Cir. 1990)).




F.3d 1112, 1116 (10th Cir. 1998). However, when questioned by the district
court, Mr. Mancillas admitted that no evidence was obtained during the search of
his apartment that was used against him during the proceedings. Rec. vol. V, at 7.
Therefore, even if Mr. Mancillas prevailed in his argument that officers
conducted an illegal search of his apartment, the district court had no evidence
before it that could be suppressed. United States v. Walker, 

, 633
(10th Cir. 1991).


                                           -4-
Mr. Mancillas’ counsel neither moved to suppress the transcripts nor objected at

trial when the government attorney introduced them. The district court had no

way of knowing that Mr. Mancillas took issue with admission of the transcripts,

and nothing in the record suggests the district court abused its discretion in

admitting them. Accordingly, Mr. Mancillas has failed to satisfy the first prong

of the plain error analysis and our inquiry ends. Olano, 

.

      Mr. Mancillas next complains that he was denied his Sixth Amendment

right to effective assistance of counsel because, among other things, his counsel

failed to raise a Fourth Amendment claim on his behalf. This court has repeatedly

stated that ineffective assistance claims should be brought in collateral

proceedings, not on direct appeal. United States v. Galloway, 

, 1240

(10th Cir. 1995). “Such claims brought on direct appeal are presumptively

dismissible, and virtually all will be dismissed.” Id.; see also United States v.

Coleman, 

, 1487 (10th Cir. 1993). Mr. Mancillas has failed to show

his claim qualifies as one of those “rare instances” in which we should hear an

ineffective counsel challenge on direct review. 

.

      Mr. Mancillas also argues that his sentence was imposed in violation of his

Sixth Amendment right to a jury trial, citing Blakely v. Washington, 

(2004), and Apprendi v. New Jersey, 

(2000). The Supreme

Court recently held the federal sentencing guidelines were incompatible with the


                                          -5-
Sixth Amendment requirement that a jury find certain sentencing facts, thus

requiring severance of the guidelines’ mandatory provisions. United States v.

Booker, 

, 764 (2005). We need not reach any issues connected to

Blakely or Booker, however, because, whether or not the district court committed

a Sixth Amendment sentencing error, the court’s erroneous imposition of a ten

year statutory minimum requires a remand for re-sentencing. United States v.

Cano-Silva, 

, 1039 (10th Cir. 2005).

         According to the presentence report (PSR), Mr. Mancillas’ total offense

level was 30 pursuant to U.S.S.G. § 2D1.1(a)(3) because of the amount of

controlled substances involved in his offenses. See PSR at 12. Based on an

offense level of 30 and a criminal history category of I, Mr. Mancillas’ guidelines

range was 97 to 121 months. See U.S.S.G. ch. 5, pt. A. The PSR advised the

district court, however, that 21 U.S.C. § 841(b)(1)(A) required that Mr.

Mancillas receive a ten year minimum penalty. See U.S.S.G. § 5G1.1(c)(2)

(stating that a “sentence may be imposed at any point within the applicable

guideline range, provided that the sentence . . . is not less than any statutorily

required minimum sentence”). Following the recommendation of the PSR, the

court sentenced Mr. Mancillas to the statutory mandatory minimum term of ten

years.

         Section 841(b)(1)(A) makes clear that a mandatory minimum ten year term


                                           -6-
of imprisonment must be imposed when a defendant is convicted of, inter alia,

either distribution of or conspiracy to distribute “500 grams or more of a mixture

or substance containing a detectable amount of methamphetamine” or distribution

of or conspiracy to distribute “5 kilograms or more of a mixture or substance

containing a detectable amount of . . . cocaine.” 21 U.S.C. §§ 841(b)(1)(A)(ii),

(viii). As stated above, Mr. Mancillas was indicted on one count of distribution

of approximately 218 grams of methamphetamine and one count of conspiracy to

distribute 500 grams or more of a mixture and substance containing a detectable

amount of cocaine. Neither the amount of methamphetamine nor the amount of

cocaine alleged in Mr. Mancillas’ indictment was sufficient to trigger the ten-year

mandatory minimum sentence pursuant to 21 U.S.C. § 841(b)(1)(A). Therefore,

as the government concedes, the district court plainly erred by sentencing the

defendant to a statutory minimum ten year sentence.

      For the aforementioned reasons, we DENY counsel’s request to withdraw

and REMAND this case to the district court for resentencing. The resentencing

proceeding must be conducted in light of Booker. Appellee’s motion to

supplement the record is denied as moot.

                                       SUBMITTED FOR THE COURT

                                       Stephanie K. Seymour
                                       Circuit Judge



                                         -7-