                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           AUG 21 2000
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,                          Nos. 99-6417,
                                                            00-6007
 v.                                               D.C. Nos. CR-97-136-L &
                                                         CIV-98-1051-L
 DAVI LYNN MURPHY,

          Defendants-Appellant.



                                ORDER AND JUDGMENT        *




Before BALDOCK, HENRY , and LUCERO , Circuit Judges.




      Davi Lynn Murphy seeks to a     ppeal the district court’s order denying her

motion to correct or vacate her sentence pursuant to 28 U.S.C. § 2255. She

advances the following arguments: (1) the government breached the plea

agreement by failing to move for a downward departure or a sentencing reduction;

(2) the government violated her Fifth Amendment rights by relying on her


      *
        This order and judgment is not binding precedent, except under the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.
statements to calculate the offense level; and (3) the district court erred in

calculating her criminal history score. For the reasons set forth below, we deny

Ms. Murphy’s application for a certificate of appealability and dismiss this

appeal. 1



                                 I. BACKGROUND

       In October 1997, Ms. Murphy pleaded guilty to a one count information

charging her with conspiring to possess with the intent to distribute cocaine base,

a violation of 21 U.S.C. § 841(a)(1). The district court sentenced her to 210

months’ imprisonment. Ms. Murphy did not file a direct appeal of her conviction

or sentence.

       In July 1998, Ms. Murphy filed the instant § 2255 motion. She argued that

the district court had improperly calculated her base offense level and her

criminal history score and that she had received ineffective assistance of counsel.

She based her ineffective assistance of counsel claim on her lawyer’s advising her

to plead guilty and on her lawyer’s failing to object at sentencing to the district

court’s determination of the offense level and criminal history score. She also


       1
          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.


                                           2
argued that the government had improperly relied on accomplice testimony in

contravention of the panel opinion in United States v. Singleton, 144 F.3d. 1343

(10th Cir. 1998), rev’d en banc, 165 F.3d 1297 (10th Cir. 1999), cert. denied, 527

U.S. 1024 (1999).

      The district court concluded that Ms. Murphy was procedurally barred from

raising these claims. It noted that she had failed to raise the claims on direct

appeal and that she had failed to establish either cause and prejudice for the

procedural default or a fundamental miscarriage of justice arising out of the

failure to consider her claims.

      The court specifically rejected Ms. Murphy’s argument that her lawyer’s

failing to challenge the government’s calculation of her offense level constituted

ineffective assistance of counsel. The court reasoned that Ms. Murphy had

admitted in the change of plea proceedings that the substance involved in the

offense was crack cocaine. The court also noted that the presentence report’s

calculation of the offense level was based on statements from Ms. Murphy. As a

result, the court stated, Ms. Murphy’s lawyer was not ineffective for failing to

challenge the government’s reliance on her own statements.

      As to Ms. Murphy’s criminal history score, the district court assumed,

without deciding, that it had erred in two respects: (1) in relying on a 1985

conviction (which Ms. Murphy allege not consider pursuant to USSG §


                                           3
4A1.2(e)(3) because it was more than ten years old): (2) in relying on a 1992

charge (which Ms. Murphy alleged had been dismissed). The court concluded

that those assumed errors had not affected Ms. Murphy’s sentence: “[E]ven if the

court were to sustain defendant’s belated objections, the sentenced imposed

would still be within the revised guideline range and the court would have

imposed the same sentence.” Rec. doc. 36 at 7. (District Court Order, filed Dec.

9, 1998).



                                 II. DISCUSSION

      In the district court proceedings, Ms. Murphy did not raise the first two

claims that she now advances in her appellate brief— that the government

breached the plea agreement by failing to move for a downward departure or a

sentencing reduction and that the government violated her Fifth Amendment

rights by relying on her statements to calculate the offense level. Ordinarily, we

do not consider arguments raised for the first time on appeal. United States v.

Alamillo, 941 F.2d 1085, 1086 (10th Cir. 1991); see also United States v. Cook,

997 F.2d 1312, 1316 (10th Cir. 1993) (concluding that grounds for relief not

raised in a § 2255 motion in the district court were waived on appeal). Here, we

discern no extraordinary circumstances warranting consideration of the new

arguments raised by Ms. Murphy. Therefore, we will not address them.


                                          4
      Ms. Murphy did raise her third claim in the district court proceedings,

arguing that the district court erred in calculating her criminal history score and

that her lawyer was ineffective in failing to challenge the district court’s

determination. Here, we agree with the analysis adopted by the district court.

      The district court noted that, absent the challenged offenses, the Guideline

range would have been 188 to 235 months. Including the challenged offenses, the

range set forth in the presentence report was 210 to 262 months. The court’s

finding—that it would have imposed the same 210 month sentence even if the two

challenged offenses had been excluded from her criminal history—forecloses Ms.

Murphy’s argument that she was prejudiced by the challenged errors.

      Accordingly, we DENY Ms. Murphy’s application for a certificate of

appealability and DISMISS this appeal.



                                               Entered for the Court,



                                               Robert H. Henry
                                               United States Circuit Judge




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