                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              FEB 5 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 00-3103
                                                 (D.C. No. 00-CV-3068-RDR)
    ISAIAS SOLIS,                                          (D. Kan.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before EBEL , KELLY , and LUCERO , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

         Isaias Solis was indicted on seven drug-related counts, and he pleaded

guilty to one count of possession with intent to distribute cocaine base in



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The 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.
exchange for the government’s dismissing the remaining six counts. In his plea

agreement, he agreed to “waive[] any right to appeal or collaterally attack any

matter in connection with this prosecution and sentence.” R. Suppl. Vol. 1, Plea

Agreement at 2. He was sentenced, inter alia, to 135 months’ imprisonment. This

court dismissed his direct appeal on the basis that “the record indicates, and Solis

concedes, that he knowingly and voluntarily . . . waived his statutory right to

appeal his sentence.”   United States v. Solis , No. 98-3345, 1999 WL 492668,

at *1 (10th Cir. July 13, 1999) (unpublished). In March 2000, Solis filed this

motion pursuant to 28 U.S.C. § 2255 challenging his sentence on the basis that his

counsel was constitutionally ineffective for failing to explain the consequences of

his waiver and in his performance at sentencing. The district court denied the

motion on the grounds that Solis knowingly and voluntarily waived the right to

collaterally attack his sentence and that, in any event, Solis could not establish

that his counsel provided ineffective assistance. Solis timely filed a notice of

appeal.

      In his application for a certificate of appealability pursuant to 28 U.S.C.

§ 2253(c), Solis raised six issues: (1) whether counsel was ineffective in failing

to advise him of the consequences of the waiver provision in his plea agreement

and the waiver provision therefore should not be enforced; (2) whether counsel

was ineffective at sentencing for failing to challenge a prior conviction used to


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increase his criminal history; (3) whether counsel was ineffective for failing to

move for a downward departure because his prior convictions over-represented

his criminal history; (4) whether counsel was ineffective for failing to move for

a downward departure because the government engaged in sentencing entrapment;

(5) whether counsel was ineffective for failing to object to the double-counting of

criminal history points; and (6) whether the district court erred in failing to

conduct an evidentiary hearing. This court previously granted a certificate of

appealability on the first and third issues.

      Solis is essentially claiming two layers of constitutionally ineffective

assistance of counsel. To succeed on a claim of ineffective assistance of counsel,

Solis must demonstrate that his counsel’s performance was deficient, and that

there is a reasonable probability that his counsel’s performance prejudiced him.

Walker v. Gibson , 228 F.3d 1217, 1231 (10th Cir. 2000). The first layer of

alleged ineffective assistance challenges his counsel’s performance in negotiating

his plea agreement, in particular, counsel’s failure to advise him of the

consequences of the waiver provision in the plea agreement. The claimed

prejudice from this allegedly deficient performance is the waiver of his second

layer of ineffective counsel claims--those occurring at sentencing. The waiver in

the plea agreement does not bar his claim of ineffective assistance in negotiating

the plea. United States v. Cockerham , No. 98-7189, slip op. at 20, 2001 WL


                                           -3-
43016, at *7 (10th Cir. Jan. 18, 2001). However, for this claim to succeed, he

must show prejudice, which in this situation, requires that he show prejudice from

his counsel’s performance at sentencing.

      We need not address whether counsel’s performance, either during plea

negotiations or at sentencing, was deficient if Solis cannot demonstrate prejudice,

Walker , 228 F.3d at 1231, and we conclude he cannot. The district court

determined that none of the actions Solis contends his counsel should have

undertaken at sentencing would have been successful in reducing his sentence.

On consideration of the record and Solis’ arguments on appeal, we agree with the

court’s analysis. Therefore, for substantially the same reasons as stated by the

district court in its analysis of Solis’ claims on the merits, we conclude he has not

shown that his counsel was ineffective.

      We DENY Solis’ application for a certificate of appealability on issues

two, four, five and six, and AFFIRM the judgment of the district court. The

mandate shall issue forthwith.



                                                     Entered for the Court



                                                     Paul J. Kelly, Jr.
                                                     Circuit Judge



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