                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 08-3356
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Northern District of Iowa.
Ricardo Martinez-Salinas,                *
                                         *     [PUBLISHED]
             Appellant.                  *
                                    ___________

                              Submitted: May 15, 2009
                                 Filed: July 20, 2009
                                  ___________

Before RILEY, SMITH, and COLLOTON, Circuit Judges.
                            ___________

PER CURIAM.

       Ricardo Martinez-Salinas appeals the district court's1 denial of his 28 U.S.C.
§ 2255 motion to vacate, set aside, or correct his sentence. Martinez-Salinas stipulated
to the application of the U.S.S.G. § 2D1.1(b)(1) enhancement for possession of a
firearm but argues that his Sixth Amendment right to effective assistance of counsel
was violated by his trial counsel's failure to explain that the application of the
enhancement required proof of a connection between the firearm and his offenses. We
reject Martinez-Salinas's argument and affirm the judgment of the district court.

      1
      The Honorable Donald E. O'Brien, United States District Judge for the
Northern District of Iowa.
                                     I. Background
      Martinez-Salinas was indicted on one count of distributing methamphetamine
within 1000 feet of an elementary school and one count of distributing cocaine within
1000 feet of a playground, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and
860(a). The government presented Martinez-Salinas with a proposed plea agreement
providing that Martinez-Salinas would plead guilty to the two counts charged and that
the government would not file additional drug-related charges against him. The plea
agreement stated that a .380 caliber pistol was found at Martinez-Salinas's residence
and contained the stipulation that the two-level § 2D1.1(b)(1) enhancement should be
applied for his "possession of a firearm during the commission of the offenses."
Martinez-Salinas signed the plea agreement after his trial counsel had it translated into
Spanish and reviewed it with him in detail.

       Martinez-Salinas subsequently pleaded guilty to the charged offenses. At his
plea hearing, Martinez-Salinas affirmed that he had read the plea agreement and had
asked his trial counsel about the provisions that he did not understand. Martinez-
Salinas and his trial counsel testified that they had spent approximately an hour and
a half to two hours reviewing the agreement.

       Thereafter, Martinez-Salinas wrote a letter to the district court in which he
complained about his trial counsel's representation and argued that the court should
not apply the § 2D1.1(b)(1) enhancement because he did not use the firearm found at
his residence in connection with his offenses. Additionally, Martinez-Salinas's trial
counsel objected to the inclusion of the § 2D1.1(b)(1) enhancement in the presentence
investigation report (PSR) "without seeking to diminish the intent of the plea
agreement."

      At his sentencing hearing, Martinez-Salinas stated that he had reviewed the PSR
with his trial counsel and an interpreter and that he understood its contents. Martinez-

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Salinas requested that the district court adopt the plea agreement and proceed with
sentencing, explaining that he did not "want to go to trial." Martinez-Salinas's trial
counsel informed the court that he had discussed the § 2D1.1(b)(1) enhancement with
Martinez-Salinas again that day and that Martinez-Salinas "indicated that he
understood the nature of the law with respect to the use of a gun in connection with
the charged offense." Applying the § 2D1.1(b)(1) enhancement, the court calculated
Martinez-Salinas's Guidelines range as 78–97 months' imprisonment and sentenced
him to concurrent 78-month terms on the two counts.

        Martinez-Salinas appealed from the district court's judgment, arguing that the
court committed plain error in applying the § 2D1.1(b)(1) enhancement and that he
received ineffective assistance of counsel during the plea negotiations and at the plea
hearing. We rejected Martinez-Salinas's § 2D1.1(b)(1) argument, concluding that he
abandoned the issue by withdrawing his objection at sentencing. United States v.
Martinez-Salinas, 110 Fed. Appx. 733, 733–34 (8th Cir. 2004) (unpublished per
curiam). As to Martinez-Salinas's ineffective assistance of counsel claim, we stated
that it "should be raised—if at all—in collateral proceedings, not on direct appeal." Id.
at 734.

       Martinez-Salinas then brought a pro se motion to vacate, set aside, or correct
his sentence pursuant to § 2255, arguing that his trial counsel's failure to challenge the
application of the § 2D1.1(b)(1) enhancement violated his Sixth Amendment right to
effective assistance of counsel. Martinez-Salinas contends that effective counsel
would have argued that the government failed to establish a nexus between the firearm
and the criminal activity. In response, the government filed an affidavit in which
Martinez-Salinas's trial counsel stated that he had explained to Martinez-Salinas prior
to sentencing that if he "continued to maintain the objection to the [§ 2D1.1(b)(1)]
enhancement, the United States Attorney's Office would consider that action to be a
breach of the plea agreement." Martinez-Salinas's trial counsel stated that "Mr.



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Martinez-Salinas indicated that he did not want to abrogate the intent of the plea
agreement" because "he hoped to receive substantial assistance motions in the future."

      At the § 2255 hearing, Martinez-Salinas's trial counsel testified as follows:

      I was aware at the very beginning of the case that there was an issue with
      the small caliber handgun . . . , but Mr. Martinez-Salinas very early on
      in the case indicated to me that he did not want a jury trial of this matter
      and basically gave me marching orders that I was to negotiate the best
      deal possible. And in my negotiations with the United States Attorney's
      Office, they were not willing to give up the gun enhancement in this
      particular case. However, we did receive some other concessions with
      regard to other charges that would not be filed. And also Mr.
      Martinez-Salinas was very concerned about whether or not he would be
      amenable to any possible substantial assistance motions. That is the
      reason that we did not contest very, very strenuously the firearm
      enhancement.

       Martinez-Salinas's trial counsel also testified that he informed Martinez-Salinas
that he "had spoken with the government on at least two, if not three[,] separate
occasions with regard to the gun issue and the government would not back off [its]
position." According to Martinez-Salinas's trial counsel, "Mr. Martinez-Salinas was
fully aware of the nature and extent of the plea agreement[,] and I . . . think that I did
the best that I could for him under the circumstances."

      The district court denied Martinez-Salinas's § 2255 motion, concluding that the
representation provided by Martinez-Salinas's trial counsel did not fall below an
objective standard of reasonableness. The court noted that although it "may not have
accepted the [§ 2D1.1(b)(1)] enhancement had there been no plea agreement,"
Martinez-Salinas's trial counsel "appeared to be carrying out the wishes of his
client—that he not go to trial." The court explained that because the government



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"refused to drop the gun enhancement, the plea agreement was apparently the only
way to achieve [Martinez-Salinas's] goals."

                                    II. Discussion
      Martinez-Salinas challenges the district court's denial of his § 2255 motion,
arguing that his Sixth Amendment right to effective assistance of counsel was violated
by his trial counsel's failure to explain that the application of the § 2D1.1(b)(1)
enhancement required proof of a connection between the firearm and his narcotics
offenses. Martinez-Salinas contends that he would not have entered into the plea
agreement with the § 2D1.1(b)(1) stipulation had he been apprised of this requirement.

       On appeal from a district court's denial of a § 2255 motion, "[w]e review the
court's factual findings for clear error and the ultimate issue of ineffective assistance
de novo." Parsons v. United States, 505 F.3d 797, 798 (8th Cir. 2007). "To succeed
on a Sixth Amendment ineffective assistance of counsel claim, [a defendant] must
demonstrate (1) trial counsel's performance was so deficient as to fall below an
objective standard of the customary skill and diligence displayed by a reasonably
competent attorney, and (2) trial counsel's deficient performance prejudiced the
defense." Armstrong v. Kemna, 534 F.3d 857, 863 (8th Cir. 2008) (citing Strickland
v. Washington, 466 U.S. 668, 687–94 (1984)). "Judicial scrutiny of counsel's
performance is highly deferential, indulging a strong presumption that counsel's
conduct falls within the wide range of reasonable professional judgment." Id. (internal
quotation marks omitted).

       We have previously held that, in order for the § 2D1.1(b)(1) enhancement to be
applied to a defendant in a drug case, "[t]he government must simply show that it is
not clearly improbable that the weapon was connected to the drug offense." United
States v. Peroceski, 520 F.3d 886, 889 (8th Cir. 2008). Of course, if a valid plea
agreement on the drug charge includes the weapon enhancement, the government's
proof of a weapon connection to the drug offense is obviated.

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                                           5
       In Lemon v. United States, the defendant applied for postconviction relief
pursuant to § 2255, arguing that his attorney had rendered ineffective assistance by
stipulating that the controlled substance found in the defendant's apartment was crack
cocaine when the laboratory reports indicated that the substance was merely cocaine
base. 335 F.3d 1095, 1095–96 (8th Cir. 2003). We affirmed the district court's denial
of the defendant's application, concluding that the defendant's attorney "made the
decision to stipulate as part of a reasonable trial strategy in which [the attorney]
sought to disprove the element of possession rather than the drug type." Id. at 1096

       We agree with the district court that Martinez-Salinas's trial counsel "appeared
to be carrying out the wishes of his client—that he not go to trial." Martinez-Salinas's
trial counsel reviewed the plea agreement and the PSR with Martinez-Salinas, and
Martinez-Salinas stipulated in the plea agreement that the § 2D1.1(b)(1) enhancement
should be applied "for possession of a firearm during the commission of the offenses."
(Emphasis added.) The government conditioned its plea offer on Martinez-Salinas's
stipulation to the enhancement, and, consistent with Martinez-Salinas's desire to avoid
a jury trial, his trial counsel objected to the inclusion of the enhancement in the PSR
"without seeking to diminish the intent of the plea agreement." Additionally, at his
sentencing hearing, Martinez-Salinas requested that the district court adopt the plea
agreement and his trial counsel informed the court that Martinez-Salinas had
"indicated that he understood the nature of the law with respect to the use of a gun in
connection with the charged offense." Finally, as in Lemon, stipulating to the
§ 2D1.1(b)(1) enhancement was necessary to pursue Martinez-Salinas's strategy of
pleading guilty and increasing his chances of receiving a substantial assistance
departure.

       On this record, given Martinez-Salinas's expressed goals and priorities, any
failure on the part of Martinez-Salinas's trial counsel to explain to Martinez-Salinas
the government's evidentiary burden on the § 2D1.1(b)(1) enhancement did not fall
below an objective standard of reasonableness. Martinez-Salinas also cannot show

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that, had he gone to trial, his preferred strategy of challenging the evidentiary basis for
application of the § 2D1.1(b)(1) enhancement would have succeeded. Therefore, we
hold that the district court did not err in denying Martinez-Salinas's § 2255 motion.

                                  III. Conclusion
       Accordingly, we affirm the judgment of the district court.
                      ______________________________




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