                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 00-3415
                                     ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
            v.                         * District Court for the
                                       * District of Minnesota.
Pedro Sera,                            *
                                       *
            Defendant - Appellant.     *
                                  ___________

                              Submitted: June 14, 2001

                                   Filed: July 10, 2001
                                    ___________

Before MURPHY, HEANEY, and BEAM, Circuit Judges.
                           ___________

MURPHY, Circuit Judge.

        Pedro Sera, a Mexican national, was sentenced to 70 months after pleading
guilty to one count of conspiracy to distribute and possess with intent to distribute 448
grams of methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(B) and 846. Sera
later filed this petition to vacate, set aside, or modify his sentence under 28 U.S.C. §
2255. The district court1 denied the petition but issued a certificate of appealability
on whether Sera's counsel had been ineffective for not moving for a downward

      1
       The Honorable Paul A. Magnuson, Chief Judge for the United States District
Court for the District of Minnesota.
departure on the basis of his willingness to waive resistance to deportation and his
status as a deportable alien. We affirm.

      Sera entered into a plea agreement in which he acknowledged he had sold a
pound or 453.6 grams of methamphetamine. The government indicated in the
agreement that it would seek to hold him responsible for an additional 37 ounces or
1049 grams. The agreement also contemplated a criminal history category of I and a
three level reduction for acceptance of responsibility. The presentence report
recommended that Sera be held accountable for a total of 1245.8 grams, which would
have involved a 10 year mandatory minimum under 21 U.S.C. § 841(b)(1)(A).

        Sera objected to the presentence report, arguing that there was only evidence to
tie him to 448 grams and a lesser mandatory minimum of five years under 21 U.S.C.
§ 841(b)(1)(B). The court conducted an evidentiary hearing at which a narcotics agent
testified that a cooperating defendant had helped him purchase a pound of
methamphetamine from Sera. The agent also testified that the same cooperating
individual had told him that he had bought approximately 37 ounces from Sera during
the previous four months. On cross examination of the agent, Sera's counsel brought
out the fact that no physical evidence linked his client to these 37 ounces.

       The court found that 448 grams of methamphetamine should be attributed to Sera
and assigned him a base offense level of 30 under U.S. SENTENCING GUIDELINES
MANUAL (U.S.S.G.) § 2D1.1(5). It then applied a three level reduction for acceptance
of responsibility and reached an adjusted offense level of 27. Together with a criminal
history category of I, this led to a sentencing range of 70 - 87 months. See id. at §5A.
The court sentenced him to 70 months.

      Sera argues he is entitled to resentencing because his counsel was ineffective in
not moving for a downward departure based on his willingness to waive resistence to
deportation and the effect on his sentence of being a deportable alien. Sera does not

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say in what ways his sentence would be more severe because of his status, but it is
possible he has in mind such potential factors as not being eligible for a minimum
security institution, certain prison programs, or transitional release to community
confinement. Sera argues that failure to seek a departure on these grounds was below
the standard of a reasonable criminal defense attorney and that he was prejudiced
because the motion could have succeeded if made. The government responds that Sera
is not entitled to resentencing because his counsel made a strategic decision to
concentrate on reducing the quantity of methamphetamine for which his client would
be held responsible. It also says that he cannot show prejudice because it was within
the court's discretion to grant a departure, the Bureau of Prisons has discretion over
conditions of confinement, and his sentence was within the 57 - 71 month range that
would have resulted from a successful motion.

       To succeed on an ineffective assistance of counsel claim, a petitioner must show
that counsel's performance was deficient and that the deficient performance prejudiced
the defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). An attorney's
performance is deficient if it "fell below an objective standard of reasonableness." Id.
at 687-88. In evaluating an attorney's performance, a court must begin with "a strong
presumption that counsel's conduct falls within the wide range of reasonable
professional assistance" because individual criminal defense attorneys might employ
different trial strategies. See id. at 689. Courts should avoid "the distorting effects of
hindsight" and try to evaluate counsel's conduct by looking at the circumstances as
they must have appeared to counsel at the time. Id. The burden is on the petitioner
to show that counsel's representation was not within the range of sound defense
strategy. See id. at 690. Most ineffective counsel claims turn on their facts rather than
on any bright line rule. See Payne v. United States, 78 F.3d 343, 348 (8th Cir. 1996).



      Sera has not shown that effective counsel must have moved for a departure based
on his willingness to waive deportation or his status as a deportable alien. In this

                                           -3-
circuit a sentencing court may grant a downward departure under U.S.S.G. § 5K2.0 for
a defendant's willingness to waive resistence to deportation, see United States v. Cruz-
Ochoa, 85 F.3d 325, 325-26 (8th Cir. 1996), but the decision to depart or not is soundly
within the district court's discretion. See United States v. Hernandez-Reyes, 114 F.3d
800, 803 (8th Cir. 1997). This court has not yet decided whether the effect on
incarceration of being a deportable alien can warrant a downward departure, and the
courts of appeal are split on the question. Four circuits hold it is not a basis for
departure. See United States v. Veloza, 83 F.3d 380, 382 (11th Cir.1996), overruled
on other grounds by United States v. Campbell, 181 F.3d 1263 (11th Cir. 1999); United
States v. Mendoza-Lopez, 7 F.3d 1483, 1487 (10th Cir.1993); United States v.
Nnanna, 7 F.3d 420, 422 (5th Cir.1993) (per curiam); United States v. Restrepo, 999
F.2d 640, 645-47 (2d Cir.1993. Three have approved departures on this ground. See
United States v. Farouil, 124 F.3d 838, 847 (7th Cir.1997); United States v. Charry
Cubillos, 91 F.3d 1342, 1344 (9th Cir. 1996); United States v. Smith, 27 F.3d 649,
654-55 (D.C. Cir.1994). Failure to move for a downward departure on a basis not
adopted in this circuit cannot be said to be outside the broad range of reasonable
assistance in Sera's case where counsel pursued an alternate strategy at sentencing and
§ 2255 counsel has not even identified what factors related to Sera's status might
support such a departure.

      Sera's counsel was successful in obtaining a significant reduction in his sentence
by concentrating on disputed factual issues related to drug quantity. If Sera had been
found responsible for all the drugs which the government attributed to him, the court
would have been required to sentence him to at least ten years. By successfully
persuading the court that Sera should be held responsible for only 448 grams, counsel
reduced the mandatory minimum exposure to five years. By negotiating a three level
reduction for acceptance of responsibility and reducing the mandatory minimum,
counsel obtained a 50 month reduction in Sera's sentence. Counsel would have had to
request departures related to his status during the same hearing at which he successfully
challenged drug quantity. We cannot say that it was not sound strategy to avoid the

                                          -4-
risk of diverting the court's focus from drug quantity. Counsel achieved a favorable
result with his strategy. Moreover, the court would have had discretion whether or not
to grant any such departure motion, and its comments at sentencing suggest that it had
taken account of all factors to fashion a favorable sentence in light of all the
circumstances.2

      Since Sera has not shown that his counsel's performance was deficient or that it
prejudiced him, we affirm the judgment of the district court.

       A true copy.

              ATTEST:

                      CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




       2
       The court referred to Sera's status as a deportable alien in explaining its
sentence after finding him responsible only for a drug quantity insufficient to reach the
ten year mandatory minimum level:

       Mr. Sera, there is one other additional factor that the Court does not take
       into consideration . . . . I am mindful . . . at the time you complete your
       incarceration, you will be deported to your home country. The reality is,
       prior to that deportation, you will be incarcerated. And if I had taken all
       of this into consideration, I would have had to give you another four years
       of imprisonment.

(Sent. Tr. at 28).

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