                                                                          FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                     August 28, 2012
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 11-3100
                                              (D.C. Nos. 2:10-CV-02343-KHV &
    CHRISTOPHER L. RIVERS,                         2:08-CR-20006-KHV-1)
                                                           (D. Kan.)
                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before O’BRIEN and McKAY, Circuit Judges, and BRORBY, Senior Circuit
Judge.


         Pursuant to a plea agreement Christopher L. Rivers pled guilty to one count

of possessing with intent to distribute five or more grams of crack cocaine,

resulting in an agreed sentence of 120 months’ imprisonment. In spite of

receiving the sentence he bargained for and having waived his right to appeal or

seek collateral relief, he filed a 28 U.S.C. § 2255 motion attacking the sentence:



*
       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. This order and judgment 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
specifically he claims ineffective assistance of counsel. The district court denied

the motion, but issued a certificate of appealability (COA) on one of his

claims—defense counsel’s alleged failure to appeal despite being asked to do so.

      Here the government again moved to enforce the appeal waiver contained

in Rivers’s plea agreement. We affirm the district court’s enforcement of the

collateral attack waiver and deny a COA on all other claims.

                                  B ACKGROUND

      In 2008, Rivers was indicted for possessing five or more grams of crack

cocaine with intent to distribute. Because of a prior drug conviction, he faced a

mandatory minimum ten-year sentence. See 21 U.S.C. § 841(b)(1)(B)(iii).

      He moved to suppress the cocaine, which had been discovered by officers

after he was arrested and taken to jail subsequent to a traffic stop. Following a

hearing a magistrate judge recommended denial of the motion. Rivers objected to

the recommendation, but three days later entered into a binding plea agreement 1

proposing a 120-month prison sentence.

      The agreement broadly waived appeals and collateral attacks:

      If the Court agrees to the proposed plea agreement, the defendant
      knowingly and voluntarily waives any right to appeal or collaterally
      attack any matter in connection with this prosecution, conviction and
      sentence . . . . except as limited by United States v. Cockerham,


1
      The court was free to reject the plea agreement, but once the agreement
(and accompanying plea) were accepted the district court was required to impose
the sentence it contained. Fed. R. Crim. P. 11(c)(1)(C)

                                        -2-
      237 F.3d 1179, 1187 (10th Cir. 2001) [holding that a valid waiver of
      collateral challenges in the plea agreement waives the right to bring a
      § 2255 motion except for ineffective assistance claims challenging
      the validity of the plea or the waiver].

R., Vol. 1 at 26-27 (brackets omitted). The agreement also waived Rivers’s right

to bring 18 U.S.C. § 3582(c)(2) sentence-reduction motions. 2

      At the change of plea hearing, the district judge discussed the waiver with

Rivers who said he had gone over it with his attorney and specifically

acknowledged the waivers as an integral part of his plea agreement. The judge

approved the agreement and accepted the plea. In March 2009, Rivers’s motion

to suppress was dismissed as moot, and in June 2009, he was sentenced to

120 months’ imprisonment, as agreed. He did not appeal.

      One year later, Rivers filed this § 2255 motion, claiming defense counsel

was ineffective because (1) she told him that if the disparity between

powder-cocaine and crack-cocaine sentences were eliminated, he would be

entitled to relief; (2) she failed to inform him that his guilty plea waived his right

to continue his challenge to the magistrate’s recommendation with respect to his

suppression motion; (3) she presented an unpersuasive re-enactment of the traffic

stop during the suppression hearing; and (4) she did not appeal from the denial of



2
      Under § 3582(c)(2), the court may modify a term of imprisonment already
imposed “in the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been lowered by
the Sentencing Commission.”

                                          -3-
the suppression motion despite being asked to do so after the sentence was

imposed. The district court denied claims one and two on the merits. It decided

claim three was waived by the plea agreement and “[i]n any event” lacked merit.

R., Vol. 1 at 113 n.9. It also considered claim four to have been waived, but

granted a COA as to it “because of some uncertainty as to the effect of a waiver

of collateral challenges on an ineffective assistance claim based on counsel’s

failure to file an appeal despite his instructions to do so.” Id. at 116.

                                     D ISCUSSION

      When the district court denies a § 2255 motion without an evidentiary

hearing, our review is de novo. United States v. Rushin, 642 F.3d 1299, 1302

(10th Cir. 2011). We take a solicitous view of Rivers’s § 2255 motion and

application for a COA because he is proceeding pro se. See United States v.

Pinson, 584 F.3d 972, 975 (10th Cir. 2009). However, we do not act as his

advocate, supply arguments or scour the record for error. See Yang v. Archuleta,

525 F.3d 925, 927 n.1 (10th Cir. 2008).

      Like an appeal waiver, a collateral-attack waiver is enforceable if (1) the

challenge falls within the scope of the waiver provisions; (2) the waiver was

knowing and voluntary; and (3) enforcement does not result in a fundamental

miscarriage of justice. United States v. Hahn, 359 F.3d 1315, 1325–27 (10th Cir.

2004) (en banc) (per curiam); see also United States v. Cockerham, 237 F.3d

1179, 1183 (10th Cir. 2001) (“[T]he constraints which apply to a waiver of the

                                          -4-
right to direct appeal also apply to a waiver of collateral attack rights.”).

“[S]ubject to [these conditions], it is consistent with Supreme Court precedent to

enforce a waiver of § 2255 rights expressly contained in a plea agreement when

the collateral attack does not challenge counsel’s representation in negotiating or

entering the plea or the waiver.” Cockerham, 237 F.3d at 1187.

      Rivers’s first claim—his guilty plea came as a result of counsel’s deficient

advice regarding possible changes to the cocaine sentencing laws—is not covered

by the collateral-attack waiver because it claims ineffective assistance in

negotiating the agreement and resulting plea. But Rivers has not demonstrated

entitlement to a COA on this claim.

      We will issue a COA only if he has made a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing,

he must establish that reasonable jurists could debate whether the district court

should have resolved his petition differently or that his issues deserve further

treatment. Slack v. McDaniel, 529 U.S. 473, 484 (2000).

      To succeed on an ineffective-assistance-of-counsel claim in this context,

the defendant must show (1) defense counsel performed deficiently; and

(2) “there is a reasonable probability that, but for counsel’s errors, he would not

have pleaded guilty and would have insisted on going to trial.” United States v.

Hamilton, 510 F.3d 1209, 1216 (10th Cir. 2007). Rivers claims “counsel told

[him] that if the [cocaine-sentencing] law[s] changed, his sentence would be

                                          -5-
decreased by 50% or more” under 18 U.S.C. § 3582(c)(2). Aplt. Br. at 9-10. He

states that if properly counseled, he “would have insisted on proceeding to trial to

preserve his right to file a § 3582(c)(2) motion.” Id. at 9.

      The district court concluded otherwise, holding: 1) the claim is factually

improbable, given the plea agreement’s specific waiver of § 3582(c)(2) rights, and

Rivers’s assurances at the change of plea hearing that he had gone over the waiver

with counsel; and 2) even if Rivers had not pled guilty he would not have been

eligible for a § 3582(c)(2) reduction because he was facing a mandatory minimum

sentence imposed by statute. See United States v. Smartt, 129 F.3d 539, 542

(10th Cir. 1997) (observing guideline amendments do not override statutory

mandatory minimum sentences). Accordingly, the court rejected the ineffective

assistance of counsel arguments.

      It also rejected Rivers’s ancillary claim as to never having been informed

his sentence would be 120 months whether he went to trial or entered into a plea

agreement. It found Rivers’s view of the law to be incorrect. Indeed, although he

faced a minimum 120-month sentence in any event, the maximum possible

sentence without a Rule 11(c)(1)(C) binding plea agreement could have been

much higher. For instance, if he had been convicted after a trial, he faced a

guideline sentencing range of 121 to 150 months.

      Rivers contends the district court’s rulings are debatable because in an

affidavit trial counsel admitted to having discussed the sentencing disparities

                                          -6-
between crack and powder cocaine with him. That is not how the affidavit reads.

Counsel’s affidavit says the conversation occurred around the time of Rivers’s

sentencing—several months after he pled guilty. Consequently, her advice could

not have had any effect on his decision to plead guilty. Further, she appears to

have discussed the elimination of sentencing disparities as benefitting only

“non-mandatory minimum sentences.” R., Vol. 1 at 88. As for Rivers’s sentence

in particular, she told him to “stay attuned to any changes to the law . . . which

may have an effect on his sentence.” Id. That statement conveys no inaccurate

advice, as there would have to be a change in the law in order for Rivers’s

mandatory minimum sentence to be affected by the elimination of sentencing

disparities between powder and crack cocaine. 3

      A COA is not warranted as to Rivers’s first claim. To the extent he seeks a

COA with respect to the district court’s denial of his claim without an evidentiary


3
       In a “Request for Leave to Supplement and Notice of Supplement
Authority,” Rivers appears to argue that his prior drug conviction could not be
considered for a mandatory minimum sentence because he received only a
twelve-month sentence. He is, again, mistaken. The state sentence imposed does
not determine whether there has been a prior felony drug offense for purposes of a
mandatory minimum sentence. The relevant inquiry is whether the state drug
offense was “punishable by imprisonment for more than one year.” 21 U.S.C.
§ 802(44) (emphasis added); cf. Burgess v. United States, 553 U.S. 124, 127 (“A
state drug offense punishable by more than one year[ ] qualifies as a ‘felony drug
offense,’ even if state law classifies the offense as a misdemeanor.”). Rivers’s
prior conviction appears to carry a maximum potential sentence exceeding one
year. See 1996 K.S.A. § 21-4705. He has not shown otherwise. Thus, his
“Request” is denied to the extent he advances a supplemental argument, but
granted to the extent he cites supplemental case law.

                                          -7-
hearing, reasonable jurists could not debate the propriety of the ruling. See

United States v. Lopez, 100 F.3d 113, 119 (10th Cir. 1996) (observing an

evidentiary hearing on a § 2255 petition is unnecessary if “the motion and files

and records of the case conclusively show that the prisoner is entitled to no relief”

(quotation omitted)).

      Rivers devotes no argument to the district court’s denial of his second

claim, regarding counsel’s advice about the effect of a guilty plea on his

suppression motion. He is not entitled to a COA on that claim. See United States

v. Fishman, 645 F.3d 1175, 1194 (10th Cir. 2011) (“We will not manufacture

arguments for an appellant, and a bare assertion does not preserve a claim,

particularly when, as here, a host of other issues are presented for review.”

(quotation omitted)).

      Rivers’s third and fourth claims—counsel performed deficiently at the

suppression hearing and failed to appeal after sentencing—do not concern the

validity of the plea or the waiver. Thus, they are potentially barred by his waiver.

He attempts to avoid the bar only as to claim four, by suggesting an evidentiary

hearing is necessary because a collateral-attack waiver does not apply when

counsel failed to appeal despite being asked to do so. The district court upheld

the waiver and dismissed, however it issued a COA on claim four.

      In United States v. Guerrero, 488 F.3d 1313, 1315 (10th Cir. 2007), and

United States v. Garrett, 402 F.3d 1262, 1267 (10th Cir. 2005), we decided

                                         -8-
evidentiary hearings were necessary to determine whether counsel in fact ignored

the defendants’ requests to appeal, despite the presence of collateral-attack

waivers. In doing so, we cited the Supreme Court’s admonition “that a lawyer

who disregards specific instructions from the defendant to file a notice of appeal

acts in a manner that is professionally unreasonable.” Roe v. Flores-Ortega,

528 U.S. 470, 477 (2000).

      But Guerrero and Garrett are unique § 2255 cases. Specifically, in

Guerrero, the government conceded the defendant’s waiver did not apply,

488 F.3d at 1315, and in Garrett, the waiver neither covered the defendant’s

claim nor was it asserted by the government, 402 F.3d at 1266 n.5. In other

cases, we have noted the limitations of Guerrero and Garrett, and have rejected

the proposition that a defendant can invalidate a collateral-attack waiver simply

by alleging counsel ignored a request to appeal. See United States v. Viera,

674 F.3d 1214, 1218-19 (10th Cir. 2012); United States v. Falcon-Sanchez, 416 F.

App’x 728, 730-31 (10th Cir. 2011) (unpublished); United States v. Macias,

229 F. App’x 683, 687 (10th Cir. 2007) (unpublished); United States v. Davis,

218 F. App’x 782, 784 (10th Cir. 2007) (unpublished). 4

      The Third Circuit similarly “consider[s] the validity of the collateral waiver

as a threshold issue” when facing a § 2255 argument that counsel failed to appeal.


4
       Unpublished decisions are not binding precedent; they are only cited here
for their persuasive value. See 10th Cir. R. 32.1(A).

                                         -9-
United States v. Mabry, 536 F.3d 231, 242 (3d Cir. 2008). The Mabry court

criticized the process employed by many courts of “skipp[ing] immediately to the

merits of the [failure-to-appeal] argument raised in the § 2255 motion,” rather

than “evaluat[ing] the validity of the habeas waiver.” Id. at 240. We agree with

Mabry; such a process is an “over-expansion” of the appeal rights discussed in

Flores-Ortega—a non-waiver case. Id.

      But we take issue with Mabry’s assertion that Garrett is evidence of our

having adopted that short-circuited process. As noted above, the waiver in

Garrett did not cover the defendant’s claim and was not asserted by the

government. Consequently, the waiver’s validity was not at issue. 5 In contrast

here, the government asserted the waiver in the district court, and the waiver’s

broad language covers Rivers’s claim.

      Thus, Rivers’s waiver is effective, provided it was entered knowingly and

voluntarily, and does not result in a fundamental miscarriage of justice, matters he

does not address. His waiver is effective and bars claim four. See United States

v. Polly, 630 F.3d 991, 1003 (10th Cir. 2011) (determining appeal waiver was

applicable where defendant failed to argue “that he did not knowingly and


5
       Likewise, the validity of the collateral-attack waiver was not at issue in
United States v. Golden, 255 F. App’x 319 (10th Cir. 2007) (unpublished), a case
relied on by Rivers. Although in Golden we remanded for an evidentiary hearing
to determine whether counsel failed to follow the defendant’s request for an
appeal, we noted “[t]he [g]overnment did not . . . oppose § 2255 relief on the
basis of the plea agreement’s waiver.” Id. at 321 n.1.

                                        -10-
voluntarily agree to the waiver, nor that enforcement of the waiver . . . would

constitute a miscarriage of justice”). In any event the district court did not abuse

its discretion in refusing an evidentiary hearing because claim four lacks merit.

See Lopez, 100 F.3d at 119.

                                    C ONCLUSION

      Rivers is not entitled to a COA on claims one, two, and three. His motion

to expand the grant of COA to include them is DENIED. This matter is

DISMISSED as to those claims. The district court’s order granting the

government’s motion to enforce the appeal waiver as to claim four is

AFFIRMED. The government’s separate motion to enforce the plea waiver is

denied as moot.

                                                     Entered for the Court


                                                     Terrence L. O’Brien
                                                     Circuit Judge




                                         -11-
