United States v. Luster , 346 F. App'x 353 ( 2009 )


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  •                                                                        FILED
    United States Court of Appeals
    Tenth Circuit
    October 2, 2009
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    TENTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    No. 09-3147
    (D.C. No. 2:08-02466-KHV)
    TRISTAN LUSTER,
    (D. Kan.)
    Defendant-Appellant.
    ORDER DENYING CERTIFICATE OF APPEALABILITY *
    Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.
    Pursuant to a plea agreement under Fed. R. Crim. P. 11(c)(1)(C), Tristan
    Luster agreed to plead guilty to distribution of cocaine in violation of 
    21 U.S.C. § 841
    (a)(1), and (b)(1)(C). Mr. Luster’s written plea agreement stated that, in
    exchange for his plea, the government would not pursue additional charges
    against Mr. Luster. The agreement also contained the parties’ joint
    recommendation of a 180 month sentence.
    *
    This order is not binding precedent except under the doctrines of law of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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    Roughly six months after the district court accepted the plea, but still prior
    to sentencing, Mr. Luster, through counsel, filed a motion seeking to withdraw his
    plea. Finding that the plea had been entered knowingly and voluntarily, the
    district court denied Mr. Luster’s motion. Then, consistent with the parties’
    agreed recommendation, the court sentenced Mr. Luster to 180 months in prison.
    Mr. Luster responded by filing the pro se motion under 
    28 U.S.C. § 2255
    that is the focus of our current attention. In his motion, Mr. Luster argued that
    his sentence should be vacated for two reasons, both sounding in ineffective
    assistance of counsel.
    First, Mr. Luster argued that counsel failed to advise him of certain
    sentencing enhancements he might face under the advisory guidelines. The
    district court rejected this argument, noting that “[d]efendant’s plea agreement
    under Rule 11(c)(1)(C) called for a [180 month] prison term,” the very term he
    received, “and defendant has not explained how the guideline calculations were
    relevant to his decision to enter a plea.” D. Ct. Memorandum and Order, R. Vol.
    I at 186. The plea agreement explicitly stated that the parties’ recommended 180
    month sentence, although within the guidelines, did not depend upon them: “The
    parties are of the belief that the proposed sentence does not offend the now
    advisory sentencing guidelines, but because this proposed sentence is sought
    pursuant to Fed. R. Crim. P. 11(c)(1)(C), the parties are not requesting the
    imposition of an advisory guideline sentence.” Plea agreement, R. Vol. I at
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    118-19. In light of this, the district court concluded, the “defendant has not
    shown a reasonable probability that but for [counsel’s] alleged misunderstanding
    of the guidelines calculations, the result of the plea proceedings would have been
    different.” D. Ct. Memorandum and Order, R. Vol. I at 186-87; see also United
    States v. Taylor, 
    454 F.3d 1075
    , 1080 (10th Cir. 2006) (defendant failed to show
    constitutional prejudice when he was sentenced in accord with his plea
    agreement).
    Second, Mr. Luster argued that counsel’s failure to object at sentencing to
    guidelines calculations concerning Mr. Luster’s criminal history and firearms use
    amounted to ineffective assistance. The district court observed, however, that Mr.
    Luster’s plea agreement contained a waiver of any “right to appeal or collaterally
    attack any matter in connection with [his] prosecution, conviction, and sentence.”
    Plea agreement, R. Vol. I at 121. Thus, the district court found Mr. Luster’s
    second argument fell within the proscription he previously agreed to. Even
    assuming (without granting) otherwise, the district court found Mr. Luster’s
    argument still lacked merit. “[E]ven if the Court assumes that counsel was
    deficient in failing to object . . . defendant has not shown a reasonable probability
    that had his counsel objected, the Court would have imposed a different
    sentence . . . The guideline calculation did not directly impact defendant’s
    sentence in this case.” D. Ct. Memorandum and Order, R. Vol. I at 187-88. Once
    again, because the plea was based on a negotiated plea and not the guidelines, the
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    court held, Mr. Luster couldn’t be prejudiced by counsel’s putative failure to
    object to the guideline calculations. The district court then proceeded to deny Mr.
    Luster’s application for a certificate of appealability (COA) and his application to
    proceed in forma pauperis. Now before us, Mr. Luster renews his requests both
    for a COA and for permission to proceed in forma pauperis.
    In order to secure a COA, Mr. Luster must show “jurists of reason could
    disagree with the district court’s resolution of his constitutional claims
    [ineffective assistance of counsel] or that jurists could conclude the issues
    presented are adequate to deserve encouragement to proceed further.” Miller-El
    v. Cockrell, 
    537 U.S. 322
    , 327 (2003). Mindful of Mr. Luster’s pro se status, in
    making this requisite assessment we review his claims with liberality. Van
    Deelen v. Johnson, 
    497 F.3d 1151
    , 1153 n. 1 (10th Cir. 2007). Even doing so,
    however, we cannot say Mr. Luster has met the high threshold required for a
    COA, and reach this conclusion for substantially the same reasons the district
    court provided. Neither do we find ourselves likely with additional exposition to
    improve on the district court’s thoughtful and extensive analysis.
    We likewise agree with the district court that Mr. Luster is not entitled to
    proceed in forma pauperis because he has failed to identify “the existence of a
    reasoned, nonfrivolous argument on the law and facts in support of the issues
    raised on appeal.” McIntosh v. U.S. Parole Comm'n, 
    115 F.3d 809
    , 812 (10th Cir.
    1997) (quoting DeBardeleben v. Quinlan, 
    937 F.2d 502
    , 505 (10th Cir. 1991)).
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    As the district court explained in denying Mr. Luster’s in forma pauperis motion,
    the “defendant’s appeal concerns alleged errors in the calculation of his guideline
    sentence. Defendant has not explained how the calculation of his guideline
    sentence was relevant to his decision to enter a plea agreement under Rule
    11(c)(1)(C), Fed. R. Crim. P., which proposed a sentence of” 180 months, and
    which was exactly what he received. D. Ct. Order July 6, 2009 at 1.
    Mr. Luster’s COA application and in forma pauperis petition are denied
    and this appeal is dismissed.
    ENTERED FOR THE COURT
    Neil M. Gorsuch
    Circuit Judge
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