                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                          JUL 19 1999
                                    TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
 vs.                                                     No. 98-4192
                                                   (D.C. No. 97-CV-359-K)
 ROBERT D. SPARROW,                                       (D. Utah)

           Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before ANDERSON, KELLY, and BRISCOE, Circuit Judges. **


       Mr. Sparrow, appearing pro se and in forma pauperis, seeks a certificate of

appealability to appeal from the denial of his motion to vacate, set aside or correct

his sentence. See 28 U.S.C. § 2255. He also seeks a writ of mandamus requiring

the district judge to show cause, in so many words, for not granting his § 2255

motion. We deny a certificate of appealability, dismiss the appeal and deny the


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
petition for a writ of mandamus.



                                    Background

      In November 1995, Mr. Sparrow plead guilty to one count of wire fraud.

He later unsuccessfully sought to withdraw his plea, and was sentenced to twenty-

four months imprisonment followed by three years supervised release. Mr.

Sparrow filed a notice of appeal on February 6, 1997, and on May 7, 1997, he

filed his first § 2255 motion. After counsel filed an Anders brief raising four

issues, Mr. Sparrow moved to dismiss his appeal over the government’s objection,

and that motion was granted on December 4, 1997. On December 17, 1997, Mr.

Sparrow filed another § 2555 motion. The magistrate judge consolidated the two

motions for disposition.

      In his motions, Mr. Sparrow sought relief based upon (1) improper

broadening of the count of conviction to include aiding and abetting, (2)

expiration of the limitations period, (3) incorrect application of the sentencing

guidelines based upon an inaccurate presentence report, (4) ineffective assistance

of counsel, and (5) cruel and unusual punishment. The magistrate judge correctly

determined that all claims, save ineffective assistance of counsel, were

procedurally barred given the voluntary withdrawal of the direct appeal. See II R.

doc. 60. The magistrate judge determined that Mr. Sparrow’s dissatisfaction with


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the appellate brief submitted by counsel and his lack of confidence in the appeal

did not constitute “cause” and Mr. Sparrow had not demonstrated factual

innocence.

      The magistrate judge rejected the ineffective assistance of counsel claims

on the merits, holding that (1) Mr. Sparrow had not demonstrated a reasonable

probability that he would have proceeded to trial but for counsel’s purportedly

inaccurate estimate of sentence, (2) an erroneous estimate does not constitute

ineffective assistance of counsel, particularly where the plea colloquy belied Mr.

Sparrow’s assertions, (3) the successful efforts of Mr. Sparrow and his counsel

that resulted in a lower loss calculation than contained in the presentence report

did not constitute deficient performance, and (4) Mr. Sparrow’s voluntary

withdrawal of his appeal precluded his ineffective assistance of appellate counsel

claim. The district court adopted the report and recommendation over Mr.

Sparrow’s objections. See II R. doc. 69.



                                     Discussion

      A plea of guilty and a conviction “comprehend all of the factual and legal

elements necessary to sustain a binding, final judgment of guilt and a lawful

sentence.” United States v. Broce, 488 U.S. 563, 569 (1989). Once a judgment

of conviction has become final, a collateral attack ordinarily is foreclosed if the


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plea was counseled and voluntary. See id. A guilty plea must be knowing and

voluntary, the product of a voluntary and intelligent choice among a defendant’s

alternatives. See Parke v. Raley, 506 U.S. 20, 28-29 (1992).

      On appeal, Mr. Sparrow argues that (1) he was denied effective assistance

of counsel because he was not adequately advised about the offense and the rights

being waived, (2) the presentence report was fatally flawed with clearly

inadequate information, and (3) the count of conviction is time-barred.

      To establish a claim of ineffective assistance of counsel, a defendant must

show (1) that counsel committed errors so serious that the defendant did not

receive the counsel guaranteed by the Sixth Amendment, and (2) that counsel’s

performance was so deficient that the defendant did not receive a fair trial. See

Strickland v. Washington, 466 U.S. 668, 687 (1984). In the guilty plea context, a

defendant must show that counsel’s performance fell below an objective standard

of reasonableness and that, but for counsel’s error, the defendant would have

insisted upon going to trial. See Hill v. Lockhart, 474 U.S. 52, 58-59 (1985).

       A plea may be involuntary where an attorney materially misrepresents the

consequences of the plea; however, standing alone, an attorney’s erroneous

sentence estimate does not render a plea involuntary. See Laycock v. New

Mexico, 880 F.2d 1184, 1186 (10th Cir. 1989); see also Lasiter v. Thomas, 89

F.3d 699, 702-03 (10th Cir. 1996); United States v. Gordon, 4 F.3d 1567, 1570-71


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(10th Cir. 1993); United States v. Rhodes, 913 F.2d 839, 842-44 (10th Cir. 1990).

The transcript of the change of plea hearing fully supports adequate advice by the

district court and a knowing and voluntary plea. See III R. doc. 19, tab 5 at 5

(Tr. 11/16/95). As the district court explained at the hearing on Mr. Sparrow’s

motion to withdraw his guilty plea, information later appearing in the presentence

report concerning the amount of the loss (or criminal history) does not render the

plea unknowing and involuntary, see VII R. Tr. 6/28/96 at 6, nor does counsel’s

optimistic estimate on incomplete information regarding the sentence.

      Mr. Sparrow contends that the presentence report was inaccurate because

no loss was occasioned; however, the district court employed its own

methodology and did not accept the presentence report. Given that the district

court need only make a reasonable estimate of the loss, see USSG § 2F1.1,

comment. (n.8), and its findings would be subject to review for clear error, see

United States v. Moore, 55 F.3d 1500, 1501 (10th Cir. 1995), Mr. Sparrow’s

contention cannot furnish a basis for an ineffective assistance of counsel claim.

Nor can his erroneous claim that the count of conviction is beyond the five-year

limitations period. 1 See 18 U.S.C. § 3282. This point was raised on appeal by

appellate counsel and abandoned when the appeal was dismissed at Mr. Sparrow’s



      1
         Even assuming that this claim was not waived, the indictment was filed
in November 1994 alleging conduct occurring on or about April 1992.

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insistence. Finally, a request for mandamus relief is inappropriate as a

supplement a collateral attack brought under § 2255. See Carter v. Attorney

General, 782 F.2d 138, 141 (10th Cir. 1986).

      APPEAL DISMISSED. Petition for Writ of Mandamus DENIED.



                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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