                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               December 19, 2013
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
 v.
                                                        No. 13-6224
                                              (D.C. Nos. 5:13-CV-00631-F and
 MARCONIA LYNN GREEN,
                                                    5:10-CR-00079-F-1)
                                                       (W.D. Okla.)
          Defendant - Appellant.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before HARTZ, GORSUCH, and PHILLIPS, Circuit Judges.



      Marconia Lynn Green seeks to attack collaterally his conviction and

sentence for federal drug charges. 28 U.S.C. § 2255. The district court analyzed

Mr. Green’s arguments in a detailed 15 page memorandum before ultimately

rejecting both them and Mr. Green’s request for a certificate of appealability

(COA).

      Now before us, Mr. Green renews his request for a COA. To succeed, he

must make a “substantial showing of the denial of a constitutional right.” 28



      *
         This order is not binding precedent except under the doctrines of law of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.
U.S.C. § 2253(c)(2). And to do that, he must demonstrate “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) (internal quotation marks omitted).

      Mr. Green submits he meets this standard for three separate reasons.

Ultimately, we cannot agree.

      First, Mr. Green argues that his trial counsel provided constitutionally

ineffective performance because counsel incorrectly estimated that he (Mr. Green)

would receive a sentence at the low end of the advisory guidelines range. As the

district court explained, however, this court has held that an “erroneous sentence

estimation by 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 (10th Cir. 1993). Even assuming deficient performance,

moreover, to succeed on a claim for ineffective assistance Mr. Green must show

prejudice. Strickland v. Washington, 466 U.S. 668, 694 (1984). And this he

cannot do because the district court expressly advised him that his sentence could

be much higher than the low end of the guidelines’ range, advice Mr. Green

repeatedly said he fully understood. See D.Ct. Op. at 9-11.

      Second, Mr. Green says his trial counsel was ineffective because counsel

failed to object to the district court’s decision at sentencing to hold him

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accountable for drug quantities beyond those expressly mentioned in Mr. Green’s

plea agreement with the government. But as the district court explained, counsel

did not perform deficiently because any objection along these lines would have

been without merit under existing law. The advisory sentencing guidelines

expressly state that “[d]rug quantities associated with illegal conduct for which a

defendant was not convicted are to be accounted for in sentencing, if they are part

of the same conduct for which the defendant was convicted.” United States v.

Mendez-Zamora, 296 F.3d 1013, 1020 (10th Cir. 2002) (citations omitted). That,

everyone acknowledges, is exactly what happened here and a lawyer doesn’t

provide constitutionally deficient service by failing to pursue an argument clearly

foreclosed by existing law.

      Finally, Mr. Green contends his counsel on direct appeal was ineffective

because he didn’t argue that Mr. Green’s plea was unknowing and involuntary

when it came to the sentence he might receive. While Mr. Green’s counsel did

not raise this issue until his reply brief, and therefore waived the issue, it was

without merit because (again) the plea colloquy shows that Mr. Green was fully

advised of and understood the scope of sentencing possibilities in his case. As

the district court explained, appellate counsel didn’t perform deficiently — and

Mr. Green could not have been prejudiced — by counsel’s failure to preserve and

pursue a meritless argument.




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      Mr. Green’s request for a COA is denied. His request to proceed in forma

pauperis is denied. Mr. Green is reminded that he must pay the filing and docket

fees in full to the clerk of the district court. This matter is dismissed.

                                         ENTERED FOR THE COURT



                                         Neil M. Gorsuch
                                         Circuit Judge




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