                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            APR 14 2004
                            FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                   Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 01-2130
                                                (D.C. No. CIV-00-1011 LH/LFG)
    RANDY ALAN WILLINGER,                              (D. New Mexico)

                Defendant-Appellant.


                             ORDER AND JUDGMENT           *




Before HENRY , BALDOCK , and MURPHY , Circuit Judges.



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

unanimously that oral argument would not materially assist in 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.

         Randy Alan Willinger appeals from the district court’s denial of relief

under 28 U.S.C. § 2255. In his § 2255 motion to vacate, set aside, or correct



*
      This order and judgment is not binding precedent, except under the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.
sentence under 28 U.S.C. § 2255, Mr. Willinger alleged that his counsel’s

performance at sentencing was ineffective.

                          I. PROCEDURAL BACKGROUND

       After reviewing Mr. Willinger’s § 2255 motion, we granted a COA on a

separate issue concerning whether our holding in       United States v. Moyer , 282

F.3d 1311 (10th Cir. 2002), required resentencing. In this case, the government

agrees that it did not seek the enhancement under § 841(b)(1), and the district

court was thus precluded from enhancing Mr. Willinger’s sentence for the prior

felony conviction.   See 21 U.S.C. § 851(a)(1) (“No person who stands convicted

of an offense under this part shall be sentenced to increased punishment by reason

of one or more prior convictions,    unless before trial, or before entry of a plea of

guilty, the United States attorney files an information with the court.   ”) (emphasis

added). In addition, as the government points out, the plea agreement also

precluded the district court from enhancing his sentence. We therefore agree with

the parties that Moyer is inapplicable to this case.   1




1
       In Moyer , the defendant had pled guilty to wrongful possession of a firearm
and, “[a]lthough the PSR clearly indicated that [he] was subject to the
[fifteen-year mandatory minimum sentence in] 18 U.S.C. § 924(e)(1), the district
court sentenced [him] to the § 924(a)(2) ten-year statutory maximum because the
government agreed not to seek [an] enhanced sentence.”       Id. at 1318. We had
previously recognized a similar imperative sentencing enhancement for prior
convictions in 18 U.S.C. § 924(e)(1).   See United States v. Johnson , 973 F.2d 857,
860 (10th Cir. 1992) (holding that § 924(e)(1) “does not require government
                                                                         (continued...)

                                             -2-
      Subsequently, we granted a COA on Mr. Willinger’s ineffective assistance

of counsel claim. For the reasons stated herein, we agree with the district court’s

denial of Mr. Willinger’s § 2255 motion.




1
 (...continued)
action to trigger its application nor does it vest discretion in the sentencing court
not to apply its mandate.”); accord United States v. Cobia , 41 F.3d 1473, 1475-76
(11th Cir. 1995). Thus, once the unchallenged provisions of the presentence
report “showed that the [§ 841(b) drug-recidivist] requirements were met, the
statutory minimum was the . . . sentence to be imposed.”      Johnson , 973 F.2d at
860.
        Thus, under Johnson, the sentence in Moyer was an illegal sentence (in the
absence of a motion for statutory departure under § 3553(e)).      Id. Noting that the
“imposition of an illegal sentence constitutes plain error even if the sentence
favors the defendant,” the Moyer panel held the error should be corrected.      Id.
at 1319. However, because the defendant had never been “made fully aware of
the genuine consequences of his guilty plea,” he had to be “given the opportunity
to withdraw his plea” before the sentencing correction could properly be made.
Id. Thus, we remanded “to the district court with instruction to vacate
[defendant’s] sentence and allow him the opportunity to withdraw his guilty
plea”; if he elected to stand on his re-informed plea, a sentence would then be
imposed in accordance with § 924(e)(1).      Id. at 1320; see also Johnson , 973 F.2d
at 861.
        Here, however, the government points out that     Moyer is inapplicable
because § 841(b)(1)(A) must be read in conjunction with 21 U.S.C. § 851(a)(1):

      No person who stands convicted of an offense under this part shall be
      sentenced to increased punishment by reason of one or more prior
      convictions, unless before trial, or before entry of a plea of guilty, the
      United States attorney files an information with the court   (and serves
      a copy of such information on the person or counsel for the person)
      stating in writing the previous convictions to be relied upon.

Id. (emphasis supplied).

                                          -3-
                              II. FACTUAL BACKGROUND

      Mr. Willinger pleaded guilty to possession with intent to distribute over

100 grams of methamphetamine, and aiding and abetting, in violation of 21

U.S.C. § 841(a), § 841(b)(1)(A), and 18 U.S.C. § 2. His plea was based on an

agreement under F   ED .   R. C RIM . P. 11(e)(1)(C), which, in addition to dismissing

other counts and forgoing further federal prosecution of Mr. Willinger and his

common law wife, set the following sentencing parameters:

      (1) the base offense level is 35 with a 3-point reduction for the
      defendant’s acceptance of responsibility, which results in a
      sentencing offense level of 32, (2) a criminal history category of VI
      significantly over represents the seriousness of defendant’s criminal
      history and that a criminal history category between III and V is
      warranted, and (3) a sentence not to exceed 188 months is the
      appropriate disposition of the case.

Aplt’s App. at 31 (Plea Agreement, filed Sept. 19, 1997).

      Before sentencing, a dispute arose over provisions in the presentence report

characterizing Mr. Willinger as leader of a drug ring and associating him with a

cache of drugs, found at a “Fourth Street trailer,” distinct from those directly

involved in his plea. Defense counsel ultimately agreed an evidentiary hearing

would not be necessary after the prosecution made the following two stipulations:

      1.     That the circumstances do not call for any upward or
             downward adjustments to the base offense level other than
             what is stipulated [in the prior plea agreement].

      2.     That Mr. Willinger’s offense was not in connection with the
             Fourth Street trailer, but was in connection with other

                                             -4-
             methamphetamine activities involving a total weight of more
             than 100 grams.

Id. at 41.

       Consistent with the stipulations, the district judge disregarded the disputed

provisions of the presentence report and dispensed with an evidentiary hearing,

and then, consistent with the plea agreement, imposed a sentence of 188 months’

imprisonment. The sentence was affirmed on direct appeal.       See United States v.

Willinger , No. 98-2127, 1999 WL 218456 (10th Cir. Apr. 15, 1999).

       In this § 2255 proceeding, Mr. Willinger claims his sentence was the

product of ineffective assistance of counsel. He contends that despite receiving a

sentence in the range specified by the plea agreement, he was prejudiced by his

counsel’s constitutionally deficient performance in that he was sentenced at the

top of the range. He alleges that (1) counsel failed to appreciate or explain to him

the punitive difference between methamphetamine and amphetamine and did not

put the government to its burden of proving that methamphetamine was involved

here; (2) counsel similarly failed to dispute the quantity of pure methamphetamine

involved, and that the amounts actually seized by the government and attributable

to him warranted a lower sentence; and (3) counsel failed to argue that the plea

agreement and stipulations precluded the judge from (a) relying on drugs seized

from the Fourth Street trailer, (b) considering his role in the trafficking, and

(c) taking into account his prior criminal record. None of these claims has merit.

                                          -5-
                                   III. DISCUSSION

      Mr. Willinger’s contentions regarding the nature, quality, and quantity of

the drugs involved all miss the mark for much the same reasons. His plea, which

admitted possession of more than 100 grams of methamphetamine in violation of

21 U.S.C. § 841(b)(1)(A) as charged in the indictment, established the character

and purity of the drug for sentencing purposes, rendering his present allegations

regarding the inadequacy of the evidence possessed by the government beside the

point. 2 United States v. Gray , 182 F.3d 762, 768 (10th Cir. 1999) (rejecting

similar claim regarding the difference between crack and cocaine powder because

plea admissions “relieve[d] the government of any burden it had at sentencing to

show the drug involved was crack”);      see also United States v. Hill   , 53 F.3d 1151,

1155 (10th Cir. 1995) (following      United States v. Broce , 488 U.S. 563, 569-70

(1989), to hold guilty plea admitted facts alleged in indictment). Similarly, his

objection regarding quantity would ultimately call into question the specification

of his offense level in the plea agreement and uncontroverted provisions of the


2
       Use of the unqualified term “methamphetamine,” rather than the phrase
“mixture or substance containing a detectable amount of methamphetamine,”
particularly in conjunction with the reference to § 841(b)(1)(A), which in
1997 was triggered by the specified 100-gram quantity only if it was actual
methamphetamine, negates Mr. Willinger’s suggestion that his plea was
ambiguous as to the nature and/or purity of the drug.  See United States v. Lujan ,
268 F.3d 965, 969 (10th Cir. 2001).

                                            -6-
presentence report. He cites no authority suggesting an attorney may be deemed

ineffective for not pursuing sentencing arguments that conflict with stipulations

made in connection with a client’s underlying plea. That is not surprising; in

essence, Mr. Willinger insists he should have been allowed to effectively disavow

key aspects of his plea agreement while retaining the benefit of the bargain

struck, a contradictory course the law does not countenance.        United States v.

Porretta , 116 F.3d 296, 300-01 (7th Cir. 1997);     United States v. Early , 77 F.3d

242, 244 (8th Cir. 1996).

       In the same vein, Mr. Willinger complains of inadequate advisement about

the methamphetamine/amphetamine distinction, but he does not take the next step

and challenge his plea on this ground–either because he does not wish to disturb

the benefits secured by his plea or because, given those benefits, he cannot say he

would have pled differently had he been properly advised.         See Gray , 182 F.3d at

767-68 (rejecting a similar objection, regarding counsel’s failure to advise about

difference between crack and powder cocaine, because defendant did not allege

he would have pled innocent had he been aware of difference).

       Mr. Willinger’s objection regarding the sentencing judge’s consideration of

his role in the offense has no factual foundation. The plea agreement and related

stipulations do not constrain the selection of a sentence      within the agreed upon

range . The only pertinent reference is the stipulation abjuring any circumstantial


                                             -7-
adjustment to the offense level specified in the plea agreement. Mr. Willinger

does not allege any such adjustment occurred. Rather, he essentially seeks to

revise his plea bargain to augment its favorable limitations on sentencing–by

having the stipulations regarding the sentencing range do double duty as

restrictions on the subsequent within-range determination as well–while retaining

all the advantages his original compromise secured.

      Equally meritless is Mr. Willinger’s allegation that counsel permitted

reliance on criminal history considerations which, he claims, were “factored out”

of the sentencing process by the plea agreement. The agreement recites that a

“criminal history category of VI significantly over represents the seriousness of

defendant’s criminal history,” and indicates that a “criminal history category

between III and V is warranted.” Aplt’s App. at 31. The agreement did not

preclude consideration of Mr. Willinger’s criminal history   in selecting a sentence

within the resultant range –a plainly reasonable course given that category III, as

opposed to IV or V, was used in designating that range.

      Mr. Willinger’s plea agreement states that “[t]here have been no

representations or promises from anyone as to what [specific] sentence the Court

will impose.” Aplt’s App. at 32. In essence, the allegations of ineffective

assistance of counsel advanced in this § 2255 proceeding reflect an indirect

attempt to circumvent the plain legal consequences of that statement.


                                           -8-
      For the forgoing reasons, we AFFIRM the district court’s denial of Mr.

Willinger’s § 2255 motion.


                                                  Entered for the Court



                                                  Robert H. Henry
                                                  Circuit Judge




                                       -9-
