                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 December 11, 2008
                     UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                 TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                     No. 08-3195
                                            (D.C. No. 6:06-CR-10186-MLB-1 and
 JOSEPH N. WHITE,                                  6:08-CV-01192-MLB)
                                                         (D. Kansas)
          Defendant-Appellant.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before O’BRIEN, EBEL, and GORSUCH, Circuit Judges.


      Defendant-Appellant Joseph N. White requests leave to appeal the district

court’s denial of his petition for habeas corpus. White contends that he received

ineffective assistance of trial counsel because his counsel failed to object to the

sentencing court’s significant upward departure from the guidelines range. For

substantially the same reasons stated by the district court, this court denies

White’s request for a certificate of appealability and dismisses this appeal.




      *
        This order is not binding precedent except under the doctrines of law of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.
I.    Background

      This court’s Order and Judgment affirming White’s sentence on direct

appeal sets forth the factual and procedural history of this case in considerable

detail. See U.S. v. White, 265 Fed. Appx. 719 (10th Cir. Feb. 15, 2008)

(unpublished). For purposes of this request for COA, the critical facts can be

summarized as follows. White pled guilty to one of the sixteen counts initially

brought against him. In exchange for his plea, the prosecutor dropped the other

fifteen counts and agreed to recommend a 60-month sentence and not to request

any upward departures. Id. at 722; [R. App. B.]. The sentencing judge

subsequently notified the parties that he was contemplating an upward departure

sua sponte. White’s counsel submitted a memorandum challenging any upward

departures. Nonetheless, the judge sentenced White to 147 months, 87 months

above the guideline sentence. On direct appeal, this court affirmed White’s

sentence under a plain error standard of review because White’s counsel “failed to

object following imposition of sentence.” Id. at 727.

II.   Discussion

      Under 28 U.S.C. § 2253(c)(1), a defendant seeking to appeal a denial of

habeas relief under 28 U.S.C. § 2255 must first obtain a certificate of

appealability (“COA”). “A COA may be issued ‘only if the applicant has made a

substantial showing of the denial of a constitutional right.’ 28 U.S.C.

§ 2253(c)(2). This requires [Mr. White] to show ‘that reasonable jurists could

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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.’” Fleming v. Evans, 481 F.3d 1249,

1254 (10th Cir. 2007) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

      White argues that he was denied effective assistance of counsel when his

counsel failed to object to the court’s decision to depart from the guideline

sentence based on the dropped charges. White argues that the departure was

unreasonable because the plea agreement created the false impression that he

would not be sentenced to more than 60 months.

      As the district court stated, “[t]his argument is completely bogus.” (Dist.

Ct. Order at 1.) The plea agreement merely stated that the prosecutor would not

recommend a sentence above 60 months; the government made no promise that

the court would follow its recommendation. Further, White was fully aware of

the court’s ability to ignore the prosecution’s recommendation. During the plea

colloquy, he acknowledged that the “government’s recommendation of a five-year

sentence was not binding on the court.” White, 265 Fed. Appx. at 723. Similarly,

this court has repeatedly found that a sentencing judge is not bound by the terms

of a plea agreement, and may consider counts dismissed as a result of the plea

bargain. See U.S. v. Trujillo, 537 F.3d 1195, 1201-02 (10th Cir. 2008) (stating

that “a plea agreement cannot preclude the court from considering the facts

underlying a dismissed count”); see also U.S. v. Pinson, 542 F.3d 822, 836 (10th

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Cir. 2008) (“[W]e have repeatedly stated that ‘[n]o limitation shall be placed on

the information concerning the background, character, and conduct of a person

convicted of an offense which a court of the United States may receive and

consider for the purpose of imposing an appropriate sentence.’”) (quoting United

States v. Magallanez, 408 F.3d 672, 684 (10th Cir. 2005)). Any objections to the

district court’s consideration of an upward departure based on the dropped

charges would, therefore, have been frivolous, and White’s counsel did not err in

failing to object on those grounds.

      For the first time in this request for COA, White argues that he was denied

effective assistance of counsel because his attorney’s failure to object to the

reasonableness of his sentence reduced White’s likelihood of success on appeal.

White’s failure to raise this issue to the district court absolves this court of any

duty to address this argument. Even in the context of pro se litigants, whose

pleadings receive a “liberal construction,” this court does not generally “address

arguments presented for the first time on appeal.” U.S. v. Mora, 293 F.3d 1213,

1216 (10th Cir. 2002).

      Were we to consider this additional argument, we would still deny White’s

request for a COA because White cannot point to any prejudice resulting from his

counsel’s failure to object. To demonstrate the existence of prejudice under

Strickland, White must show that “there is a reasonable probability that but for”

his counsel’s failure to object to the sentencing judge’s upward departure, “the

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result of the proceeding would have been different.” U.S. v. Hemsley, 287 Fed.

Appx. 649, 650 (10th Cir. 2008) (quoting Strickland v. Washington, 466 U.S.

668, 687 (1984)). This court’s Order and Judgment on direct appeal stated that

White’s sentence was procedurally reasonable because “the judge not only stated,

but relied principally upon, appropriate reasons, under any standard of review.”

White, 265 Fed. Appx. at 728 (emphasis added). Further, our review in the

direct appeal of this case of the issue of the substantive reasonableness of the

sentences was for “abuse of discretion,” which is the same standard of review

used in cases where a defendant’s attorney has objected at the sentencing hearing.

See, e.g., U.S. v. Verdin-Garcia, 516 F.3d 884, 898 (10th Cir. 2008) (reviewing

the substantive reasonableness of defendant’s sentence for an abuse of discretion).

White cannot, therefore, demonstrate that “there is a reasonable probability that”

the outcome of his appeal would have been different had his counsel objected at

the sentencing hearing. Strickland, 466 U.S. at 687. Absent such a showing,

defense counsel’s failure to object does not rise to the level of ineffective

assistance of counsel under Strickland. See Hemsley, 287 Fed. Appx. at 650-51

(holding that appellant had not made out a claim of ineffective assistance of

counsel based solely on the argument that his lawyer’s failure to object subjected

appellant to the more deferential “plain error” standard of review on appeal).




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III.   Conclusion

       Because White cannot make a “substantial showing of the denial of a

constitutional right,” we DENY his request for a COA and DISMISS his petition.



                                     ENTERED FOR THE COURT



                                     David M. Ebel
                                     Circuit Judge




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