                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            JAN 30 2003
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,
                                                             No. 02-5137
 v.                                                  D.C. Nos. 00-CV-1050-K and
                                                             95-CR-152-K
 PETER ANTHONY GUTIERREZ,                                  (N.D. Oklahoma)

               Defendant - Appellant.


                            ORDER AND JUDGMENT


Before EBEL , HENRY , and HARTZ , 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.       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not binding precedent, except under the doctrines of law of the case, res judicata,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.

       Pro se petitioner Peter Anthony Gutierrez (Petitioner) requests a certificate

of appealability to appeal the district court’s denial of his motion to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255. He claims he received

ineffective assistance of counsel due to his attorney’s failure to advise him

regarding how his sentence would be calculated. Because he has not

demonstrated “a substantial showing of the denial of a constitutional right,” we

deny his request and dismiss the appeal. See 28 U.S.C. § 2253(c)(2).

      On March 8, 1996, Petitioner was indicted on four charges: (1) possession

of a firearm after former conviction of a felony, in violation of 18 U.S.C. § 922

(g)(1); (2) possession of stolen firearms, in violation of 18 U.S.C. § 922(j); (3)

carjacking, in violation of 18 U.S.C. § 2119; and (4) use of a firearm during the

commission of a crime of violence, in violation of 18 U.S.C. § 924(c). On

April 22, 1996, Petitioner and the government reached a plea agreement under

which Petitioner agreed to plead guilty to the first two counts, and the government

agreed to dismiss the second two counts and not to initiate additional charges

arising out of the investigation.

      In applying the Sentencing Guidelines to Petitioner’s case, the district court

adopted the factual findings contained in the probation officer’s presentence

report, finding by a preponderance of the evidence that Petitioner had used the

illegally possessed firearm during the commission of a carjacking. See

United States v. Gutierrez, No. 96-5221, slip op. at 3-4 (10th Cir. July 8, 1997).

Thus, in considering which offense level to apply, the district court considered


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conduct relating to the two counts of the indictment—carjacking and use of a

firearm during the commission of a crime of violence—that had been dismissed as

part of the plea agreement between the government and Petitioner. See id. The

court sentenced Petitioner to a term of 235 months in prison—five months shy of

20 years.

      Petitioner challenged his sentence on direct appeal to this court. We

affirmed the district court’s sentence, finding Petitioner’s claims to be wholly

frivolous. See id. at 2.

      Petitioner argues that his counsel was constitutionally ineffective during the

plea process because he failed to inform Petitioner that the conduct associated

with the charges dismissed as part of the plea agreement could be used to impose

a higher sentence on the charges to which he pleaded guilty. We find this claim

to be without merit. Petitioner was fully advised of the relevant information

regarding his potential sentence.

      The plea agreement informed Petitioner that “the maximum statutory

sentence under both Title 18, United States Code, Section 922(g) (Count One),

and Title 18, United States Code, Section 922(j) (Count Two) is imprisonment for

a term of ten (10) years, and a fine of up to $250,000.00, or both.” Plea

Agreement at 6-7. The agreement stated that the sentence would be imposed in

accordance with the Sentencing Guidelines, and that “the sentence has not yet


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been determined by the Court, that any estimate of the likely sentence received

from any source is a prediction, not a promise, and that the Court has the final

discretion to impose any sentence up to the statutory maximum.” Id. at 8. In

addition, the plea agreement informed Petitioner that “THE DEFENDANT

FURTHER UNDERSTANDS THAT THE SENTENCE TO BE IMPOSED

UPON THE DEFENDANT WILL BE DETERMINED SOLELY BY THE

SENTENCING JUDGE.” Id. at 9.

        Petitioner also executed a “Petition to Enter Plea of Guilty and Order

Entering Plea” that was filed with the district court. In it Petitioner attested to the

following:

        My attorney has informed me my plea of GUILTY could subject me
        to a maximum term of imprisonment of ten years on Count One, and
        ten years on Count Two . . . .
        ....

        I have been advised by counsel I will be sentenced pursuant to the
        sentencing guidelines procedure established by Title 18 U.S.C.
        sections 3553 et seq. I understand sentencing is a matter left
        exclusively in the province of the Court; and I understand the
        sentence imposed by the Court may be within the guideline table
        range provided by law, or for good cause stated the Court may depart
        therefrom after a review of all relevant facts and circumstances of my
        case have been considered by the Court.

Petition to Enter Plea of Guilty and Order Entering Plea at 4, 6. This document

also contained a “Certificate of Counsel,” signed by Petitioner’s lawyer, which

said:


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       I have advised the defendant as to any minimum sentence required by
       law, and I have advised the defendant as to the maximum sentence
       possible under the applicable statutes. I have provided the defendant
       with my estimates concerning his possible sentencing guideline range,
       and my opinions concerning any possible grounds for upward or
       downward departure from the guideline range. I have specifically
       advised the defendant, however, that sentencing is a matter
       exclusively within the control of the Court.

Id. at 9.

       Our standard of review is set forth in United States v. Gordon, 4 F.3d 1567,

1570 (10th Cir. 1993):

       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 Hill v. Lockhart, 474 U.S.
       52, 58 (1985). Under this test, the defendant must show that his
       counsel's performance "fell below an objective standard of
       reasonableness," Strickland, 466 U.S. at 688, and that the deficient
       performance resulted in prejudice, id. at 691. To show prejudice in the
       guilty plea context, the defendant must establish that "there is a
       reasonable probability that, but for counsel's errors, he would not
       have pleaded guilty and insisted on going to trial." Hill, 474 U.S. at
       59.

       Petitioner has failed to show that his counsel’s performance fell below an

objective standard of reasonableness. Petitioner alleges that “[c]ounsel’s failure to

advise [him] that the dismissed charges would be used in the sentence calculation

is a clear example of counsel’s ineffectiveness.” Supporting Br. for Application

for Certificate of Appealability at 2. He claims: “[D]efense counsel led [him] to

believe, by the dismissal of the charges, that the charges would not be used against

[him]. Therefore, [he] was tricked and misled into pleading guilty, through

                                         -5-
misrepresentation.” Id. He asserts that had he known that the charges would be

used against him, he would have “pled not guilty and insisted on going to trial.”

Id.

      In making these assertions, Petitioner neglects key facts. The plea

agreement advised Petitioner that he faced a sentence of 10 years on each count to

which he pleaded guilty. Moreover, the agreement specifically informed him that

the judge was the ultimate decisionmaker in sentencing and that any estimates

regarding his sentence made prior to his entering the plea were “a prediction, not a

promise.” Plea Agreement at 8. Petitioner himself acknowledged in his petition to

the sentencing court that “sentencing is a matter left exclusively in the province of

the Court.” Petition to Enter Plea of Guilty and Order Entering Plea at 6.

Petitioner’s counsel attested that he had told Petitioner of the maximum sentence

he faced, provided his “estimates concerning [Petitioner’s] possible sentencing

guideline range,” and advised him “that sentencing is a matter exclusively within

the control of the Court.” Id. at 9.

      Thus, Petitioner was well informed of the consequences of his plea and

knew that the court had the authority to sentence him to as much as 20 years in

prison. His counsel’s failure to inform him of the specific bases on which his

sentence would be calculated is of no moment and does not constitute deficient

representation. Petitioner does not allege that his counsel misinformed him that


                                          -6-
the Sentencing Guidelines would be applied in a certain way or that a lower

sentence was likely to be imposed. Had his counsel done so, Petitioner’s claim

might well have merit. But there is no indication in either Petitioner’s brief or the

record on appeal that counsel misled Petitioner regarding what sentence he would

receive. While a pro se litigant’s pleadings are to be construed liberally, Whitney

v. New Mexico, 113 F.3d 1170, 1172 (10th Cir. 1997), this court “will not supply

additional factual allegations . . . on [a petitioner’s] behalf.” Id. at 1173-74.

      We have reviewed Petitioner’s brief, the district court’s order, and the

record on appeal. Petitioner’s pleadings fail to satisfy the requirements of 28

U.S.C. § 2253(c)(2). Therefore, we DENY Petitioner’s request for a certificate of

appealability and DISMISS the appeal.

                                                 Entered for the Court


                                                 Harris L Hartz
                                                 Circuit Judge




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