                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
               UNITED STATES COURT OF APPEALS                               FEB 23 1999

                               TENTH CIRCUIT                            PATRICK FISHER
                                                                                 Clerk



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
                                                          No. 97-6286
 v.                                                   (D.C. No. 96-CR-108)
                                                          (W.D. Okla.)
 SHERWOOD ALVIN LYLES, JR.,

       Defendant-Appellant.




                        ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BARRETT, and TACHA, Circuit Judges.



      Mr. Sherwood A. Lyles pled guilty to one count of conspiracy to distribute

cocaine and crack in violation of 21 U.S.C. § 846. On appeal, Mr. Lyles argues

that the district court erred in (1) denying his request to withdraw his guilty plea;

(2) finding him accountable for one-half kilogram of crack; and (3) denying his




       This order and judgment is not binding precedent, except under the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.
request for a downward departure. We affirm. 1

      Mr. Lyles was a member of a crack distribution enterprise, the Main Street

Mafia Crips (MSMC), which transported cocaine from California to Oklahoma for

distribution. Around June 22, 1995, Mr. Lyles and Mr. Pete Monroe both traveled

separately from Los Angeles to Oklahoma City. Mr. Monroe transported one-half

kilogram of cocaine with him. This cocaine was cooked into crack and sold. Mr.

Lyles sold one-half ounce of crack at two different locations before he was

arrested.

      In exchange for dismissal of all other counts against him, Mr. Lyles pled

guilty to one count of conspiracy. In his petition to enter a plea agreement, Mr.

Lyles recognized that his maximum sentence could be life imprisonment, that his

sentence would be “solely a matter for the judge to decide,” and that the judge is

required to consider all circumstances including relevant conduct and indictment

charges to which Mr. Lyles did not plead. Rec., vol. I., doc. 419, at 3. The

district court reviewed the plea agreement and asked a series of questions to assure

that he understood the proceedings. After reviewing his pre-sentence report four

months later, however, Mr. Lyles moved to withdraw his plea. He also changed



       1
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without
oral argument. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).


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counsel. The district court found that Mr. Lyles’ plea was knowing and voluntary

and denied his motion. Rec., vol. I, doc. 763.

      During sentencing, the district court found Mr. Lyles responsible under

relevant conduct for the half kilogram of cocaine Mr. Monroe brought for sale by

the conspirators. The court also found that Mr. Lyles was a full participant in the

drugs sales force and was not eligible for a downward adjustment for playing a

minor role.

                                   I. Guilty Plea

      Mr. Lyles argues he should have been allowed to withdraw his guilty plea

because his counsel was ineffective. He asserts several counsel errors: his counsel

misrepresented his presentencing report; negotiated an inadequate plea agreement;

and inadequately informed him of the consequences of the plea.

      We review a challenge to a guilty plea based on a claim of ineffective

assistance of counsel using the two-part test announced in Strickland v.

Washington, 466 U.S. 668 (1984); see United States v. Gordon, 4 F.3d 1567, 1570

(10th Cir. 1993). A defendant must establish that his counsel's performance

objectively falls below the standard of reasonableness and that the deficient

performance was prejudicial. Id. To show prejudice in a plea agreement, the

defendant must establish that “‘but for his counsel’s errors, he would not have

pleaded guilty and insisted on going to trial.’” Id. (quoting Hill v. Lockhart, 474


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U.S. 52, 59 (1985)).

      Mr. Lyles’ contention that his counsel’s misrepresentation of his sentencing

range constituted ineffective assistance is without merit. He makes the same

arguments which we rejected in Gordon, where we held that “[a] miscalculation or

erroneous sentence estimation by defense counsel is not a constitutionally deficient

performance rising to the level of ineffective assistance of counsel.” Id. We also

held that since the defendant was informed about the uncertain nature of

sentencing predictions, his mere allegations of prejudice were insufficient to

establish the second prong of Strickland. See id. at 1571. In his petition to enter a

plea, Mr. Lyles acknowledged that he understood sentencing would be

discretionary, could differ from any calculations of the attorney, and could include

other relevant conduct. Under these circumstances, we conclude Mr. Lyles has not

adequately shown prejudice.

      Mr. Lyles’ next arguments are also dispensable under the Strickland test.

He expresses his dissatisfaction with his plea agreement and argues that he was not

adequately informed by counsel about the consequences of the plea. But under the

first prong, Mr. Lyles proffers no evidence beyond mere allegations that his

counsel conducted himself outside the range of a competent attorney. To the

contrary, the plea record rebuts Mr. Lyles’ complaints. During the plea

proceedings, the court asked him about the sufficiency of his counsel, to which


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Mr. Lyles responded with satisfaction. The record also shows that counsel

reviewed the plea agreement with Mr. Lyles, and that the plea limited Mr. Lyles’

responsibility for the relevant conduct of his coconspirators to a short period rather

than the whole ten months of the conspiracy, thereby reducing his potential

liability from over 15 kilograms of cocaine to one-half kilogram. The district

court duly noted during the plea hearing the great advantage this gave Mr. Lyles in

addition to the dismissal of the other charges pending against him. Mr. Lyles has

not established his counsel was ineffective under the Strickland test.

      We review the district court’s denial of a motion to withdraw a guilty plea

for abuse of discretion. See United States v. Graves, 106 F.3d 342, 343 (10th Cir.

1997). It is established that one who enters a guilty plea has no right to withdraw

it unless the trial court acted unjustly or unfairly. See United States v. Barker, 579

F.2d 1219, 1223 (10th Cir. 1978). Where Mr. Lyles’ claims of ineffective

assistance of counsel has failed, he also fails to show that the district court acted

unfairly or unjustly in denying his motion to withdraw his guilty plea on that basis.

See Gordon, 4 F.3d at 1573. We are further persuaded the record shows Mr. Lyles

voluntarily and knowingly entered into the plea. The district court did not abuse

its discretion in denying his motion to withdraw his guilty plea.

                              II. Kilogram of Cocaine

      Mr. Lyles objects to being held responsible for one-half kilogram of


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cocaine. He argues that he only sold one-half ounce and was not involved with the

remaining amount of cocaine Mr. Monroe transported to Oklahoma City. We

review these factual findings for clear error, giving deference to the district court's

application of the sentencing guidelines to the facts. Questions of law regarding

the application of the guidelines are reviewed de novo. See United States v.

Lacey, 86 F.3d 956, 967 (10th Cir. 1996).

      The Sentencing Guidelines provide that all relevant conduct should be taken

into account at sentencing. U.S.S.G. § 1B1.3(a)(1)(B) provides that relevant

conduct includes “all reasonably foreseeable acts and omissions of others in

furtherance of the jointly undertaken criminal activity.” The district court found

that Mr. Lyles by his plea was an admitted member of the cocaine and crack

conspiracy. The court also found that Mr. Lyles was aware of the one-half

kilogram of cocaine and that it was distributed during Mr. Lyles’ active tenure as a

crack salesman. Our review of the record, including relevant portions of the

transcript of the trial of Mr. Lyles’ coconspirators, persuades us it was reasonably

foreseeable to Mr. Lyles that at least the one-half kilogram of cocaine brought in

by Mr. Monroe was being distributed by Mr. Lyles’ coconspirators.




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                   III. Downward Departure for Minor Role

      Mr. Lyles asserts he should have received a reduction for his minor role in

the conspiracy to reflect the brevity of his ten-day stay in Oklahoma City. We

review the district court’s determination that Mr. Lyles was not a minor participant

as a finding of fact under the clearly erroneous standard, giving due deference to

the court’s application of the Sentencing Guidelines. See United States v. Ballard,

16 F.3d 1110, 1114 (10th Cir. 1994). The record reflects Mr. Lyles spent his ten

days actively involved in selling crack along with his coconspirators. This depth

of participation convinces us the district court did not err in denying Mr. Lyles a

deduction for a minor role in the conspiracy, despite the brevity of his stay.

      Finally, Mr. Lyles contends he should have received a discretionary

downward departure under U.S.S.G § 5K2.0. Because Mr. Lyles failed to raise

this issue in the district court, we decline to consider it on appeal. See United

States v. Simpson, 152 F.3d 1241, 1249 n.4 (10th Cir. 1998).

      In conclusion, we AFFIRM the district court in all its proceedings.

                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Chief Judge




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