FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                                   TENTH CIRCUIT                            March 10, 2014

                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,

 v.                                                           No. 13-5101
                                                   (D.C. No. 4:13-CR-00047-CVE-1)
 JUAN GONZALEZ BARRAZA,                                       (N.D. Okla.)

        Defendant - Appellant.


                                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 This order and judgment is not binding precedent, except under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.
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. Gonzalez-

Barraza’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, 

, 1240

(10th Cir. 1995) (en banc); accord Massaro v. United States, 

, 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. 

.

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, 

, 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.” 

; see also 

(“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




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