United States v. Smith ( 2010 )

  •                                                                         FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                                                      March 31, 2010
                                     TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                        Clerk of Court
                                                            No. 09-4132
     v.                                             (D.C. No. 2:09-CV-00044-TS)
                                                              (D. Utah)
                                        ORDER *
    Before HARTZ, SEYMOUR and EBEL, Circuit Judges.
          Mr. Gregory Smith, a federal inmate appearing pro se, requests a
    Certificate of Appealability (“COA”) to appeal the district court’s denial of his 28
    U.S.C. § 2255 motion to vacate, set aside, or correct sentence. Because Mr.
    Smith has not made “a substantial showing of the denial of a constitutional right,”
    28 U.S.C. § 2253(c)(2), we deny his request for a COA. We grant his request to
    proceed in forma pauperis, and we dismiss this appeal.
          Mr. Smith pled guilty to two counts of access device fraud in violation of
           This order is not binding precedent, except under the doctrines of law of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 10th Cir. R. 32.1 and 10th Cir. R. 32.1.
    18 U.S.C. § 1029, and two counts of aggravated identity theft in violation of 18
    U.S.C. § 1028A. In his plea agreement, Mr. Smith waived both his direct and
    collateral appeal rights as follows:
          (c) Fully understanding my limited right to appeal my sentence, as
          explained above, and in consideration of the concessions and/or
          commitments made by the United States in paragraph 11 of this plea
          agreement, I knowingly, voluntarily and expressly waive my right to
          appeal any sentence imposed upon me, and the manner in which the
          sentence is determined, on any of the grounds set forth in 18 U.S.C. §
          3742 or on any ground whatever, except I do not waive my right to
          appeal (1) a sentence above the maximum penalty provided in the
          statute(s) of conviction, or (2) a sentence above the high-end of the
          guideline range as determined by the Court at sentencing, or in the
          event that no such determination is made by the Court, a sentence above
          the high-end of the guideline range as set forth in the final presentence
    Rec., vol. I at 57 (May 14, 2009 Order denying § 2255 Motion.).
          At sentencing, Mr. Smith was subject to a statutory maximum term of ten
    years for the access fraud convictions, see § 1029(c)(1)(A)(i), and a statutorily
    mandated sentence of two years for the identity theft convictions, see §
    1028A(a)(1). The probation office submitted a Presentence Report calculating
    Mr. Smith’s base offense level for the § 1029 offenses at six. The PSR proposed
    an addition of a ten-level increase for the amount of loss attributable to Mr.
    Smith’s conduct ($120,000 - $200,000), a two-level increase for the number of
    victims involved (ten or more), a two-level increase for the use of sophisticated
    means, and a two-level increase for the use of another’s means of identification to
    unlawfully obtain another identification. The PSR then proposed a three-level
    decrease for acceptance of responsibility under U.S.S.G. § 3E1.1, thereby
    yielding a final offense level of nineteen. Given Mr. Smith’s criminal history
    category of I, his applicable sentencing guideline range for the § 1029 offenses
    alone was between thirty and thirty-seven months. In addition, however, §
    1028(a)(b) mandated a consecutive twenty-four month sentence for one of the
    aggravated identity theft convictions. As a result, the minimum sentence
    applicable to Mr. Smith was fifty-four months. See rec., vol. I at 27 (citing PSR
    at 12-13). The district court adopted the PSR’s recommendations and sentenced
    Mr. Smith to fifty-four months’ imprisonment. Mr. Smith did not file a direct
          In his § 2255 petition, Mr. Smith contended the sentencing court’s
    inclusion of sentencing level increases exceeded its jurisdiction and violated
    Apprendi v. New Jersey, 
    530 U.S. 466
     (2000), because they were based on judge-
    found facts pursuant to a preponderance of the evidence standard. He also
    asserted ineffective assistance of counsel based on his counsel’s failures to raise
    the Apprendi issue, to properly calculate the applicable sentencing guideline
    range, to object to enhancements, and to advise him he had issues to appeal. The
    district court held most of the claims waived by the plea agreement and denied the
          A COA is a jurisdictional prerequisite to our review of a petition for a writ
    of habeas corpus. Miller-El v. Cockrell, 
    537 U.S. 322
    , 336 (2003). We will issue
    a COA only if a petitioner makes “a substantial showing of the denial of a
    constitutional right.” 28 U.S.C. § 2253(c)(2). Under this standard, a petitioner
    must demonstrate “that reasonable jurists could debate whether (or, for that
    matter, agree that) the petition should have been resolved in a different manner or
    that the issues presented were adequate to deserve encouragement to proceed
    further.” Slack v. McDaniel, 
    529 U.S. 473
    , 484 (2000) (quotations omitted).
          We note that “a waiver of collateral attack rights brought under § 2255 is
    generally enforceable when the waiver is expressly stated in the plea agreement
    and where both the plea and the waiver were knowingly and voluntarily made.”
    United States v. Cockerham, 
    237 F.3d 1179
    , 1183 (10th Cir. 2001). But a waiver
    does not bar a § 2255 motion “based on ineffective assistance of counsel claims
    challenging the validity of the plea or the waiver.” Id. at 1187.
          In deciding whether an issue was waived, a court conducts a three-pronged
    analysis to determine “(1) whether the disputed appeal falls within the scope of
    the waiver of appellate [or collateral attack] rights; (2) whether the defendant
    knowingly and voluntarily waived his appellate rights; and (3) whether enforcing
    the waiver would result in a miscarriage of justice . . . .” United States v. Hahn,
    359 F.3d 1315
    , 1325 (10th Cir. 2004) (en banc) (per curiam); Cockerham, 237
    F.3d at 1191. Given Mr. Smith’s pro se status, his submissions are construed
    liberally. See, e.g., de Silva v. Pitts, 
    481 F.3d 1279
    , 1283 n.4 (10th Cir. 2007).
          Applying Hahn, we agree with the district court that Mr. Smith’s waiver
    covers all of the arguments he made in his § 2255 petition with the exception of
    one of his ineffective assistance of counsel claims pursuant to Cockerham, which
    we discuss below. First, when Mr. Smith waived his right to appeal his sentence
    unless the sentence was “above the maximum penalty provided in the statute(s) of
    conviction,” he did not preserve any right to contend “it was constitutionally
    impermissible for the district court to engage in factfinding by a preponderance of
    the evidence to enhance Defendant’s sentence beyond the Guidelines range that
    would otherwise apply based on the facts that Defendant admitted during the plea
    hearing.” United States v. Green, 
    405 F.3d 1180
    , 1189 (10th Cir. 2005). In any
    event, Mr. Smith wrongly assumes that the Supreme Court’s decision in Apprendi
    applies to this case – it does not. Apprendi applies only when a defendant is
    sentenced beyond the statutory maximum applicable to his crimes of conviction,
    see Apprendi, 530 U.S. at 490, which did not occur here. See Green, 405 F.3d at
    1194 (The statutory maximum is “the upper limit of punishment that Congress has
    legislatively specified for the violation of a given statute.”). 1
          Second, two of Mr. Smith’s ineffective assistance of counsel claims, based
            Cunningham v. California, 
    549 U.S. 270
     (2007), on which Mr. Smith
    relies, does not hold to the contrary. In Cunningham, the Court applied
    Apprendi’s rule to facts permitting imposition of an “upper term” sentence under
    California’s determinate sentencing law, which permitted the court there to go
    above the maximum statutory sentence allowed by the jury verdict, thereby
    violating Apprendi’s bright-line rule. Id. at 288-89. Cunningham does not affect
    judicial fact-finding inside the statutory range, as occurred here. See United
    States v. Conatser, 
    514 F.3d 508
    , 527-28 (6th Cir. 2008).
    on his counsel’s failure to object to the content of the PSR and to advise Mr.
    Smith regarding his ability to appeal, were within the scope of the waiver because
    neither claim challenged the validity of the plea or the waiver. See Cockerham,
    237 F.3d at 1187; see rec., vol. I. at 62. Substantially for the reasons given by the
    district court, we agree with its determination that “the majority of this collateral
    appeal is within the scope of the Petitioner’s waiver, that the waiver was knowing
    and voluntary, and that enforcing the waiver would not result in a miscarriage of
    justice . . . .” Rec., vol. I at 62.
           Finally, we turn to Mr. Smith’s claim that defense counsel’s miscalculation
    of the applicable sentencing guideline constituted ineffective assistance that
    rendered his plea unknowing and involuntary under Cockerham. We take note of
    our well-established precedent that in general “miscalculation or erroneous
    sentence estimation by a defense counsel is not a constitutionally deficient
    performance rising to the level of ineffective assistance of counsel.” United
    States v. Gordon, 
    4 F.3d 1567
    , 1570-71 (10th Cir. 1993); accord United States v.
    430 F.3d 1096
    , 1099 (10th Cir. 2005) (“[S]tanding alone, an attorney’s
    erroneous sentence estimate does not render a plea involuntary.”). Moreover,
    even if counsel’s alleged error did constitute constitutionally deficient
    performance, Mr. Smith has failed to show his defense was thereby prejudiced as
    required by Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984). To establish
    prejudice in the context of a guilty plea, Mr. Smith must show that but for
    counsel’s deficient performance, he would not have pled guilty but instead
    “would have insisted on going to trial.” United States v. Taylor, 
    454 F.3d 1075
    1080 (10th Cir. 2006); see also United States v. Harms, 
    371 F.3d 1208
    , 1211
    (10th Cir. 2004). Mr. Smith’s pleadings make no such showing. Instead he
    repeatedly asserts that he “do[es] not wish to withdraw [his] plea agreement.”
    Rec., vol. I at 7; see id. at 21 (“It is critical that the Court understand that I am
    not suggesting that I wish to withdraw my plea. I pled guilty because I was
    guilty.”). Accordingly, we conclude that Mr. Smith has failed to show the denial
    of a constitutional right.
          For these reasons, we DENY Mr. Smith’s request for a COA. We GRANT
    his motion to proceed in forma pauperis, and we DISMISS this appeal.
                                             ENTERED FOR THE COURT
                                             Stephanie K. Seymour
                                             Circuit Judge