                      UNITED STATES COURT OF APPEALS
Filed 1/10/97
                             FOR THE TENTH CIRCUIT



    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 96-7039
                                                    (D.C. No. CIV-95-34-S)
    MANUEL DIAZ SANCHEZ,                                  (E.D. Okla.)

                Defendant-Appellant.




                             ORDER AND JUDGMENT *



Before EBEL and HENRY, Circuit Judges, and DOWNES, ** District Judge.




         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); 10th Cir. R. 34.1.9. 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      This order and judgment is not binding precedent, except under the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.
**
       Honorable William F. Downes, District Judge, United States District Court
for the District of Wyoming, sitting by designation.
      Defendant Manuel Diaz Sanchez appeals the district court’s denial of his

motion to vacate, set aside, or correct his sentence, brought pursuant to 28 U.S.C.

§ 2255. We affirm.

      Defendant was charged with three counts in a multi-defendant, multi-count

criminal proceeding. In exchange for dismissal of two of the counts, defendant

pled guilty to possessing 1,200 pounds of marijuana with intent to distribute. His

sentence offense level was increased, however, to include responsibility for

several large cocaine transactions which the district court found occurred during

commission of the marijuana offense. Defendant was sentenced to 135 months’

incarceration.

      In his direct appeal, defendant argued that the evidence did not support the

finding that he was involved in the cocaine transactions and that, therefore, his

sentence was erroneous. We affirmed, holding that the record supported the

district court’s factual findings. United States v. Sanchez, No. 91-7100, 1992 WL

74128 (10th Cir. Apr. 6, 1992).




                                         -2-
      Defendant filed this § 2255 motion in January 1995, 1 arguing that the

government breached the oral plea agreement by failing to limit defendant’s

sentence to the marijuana offense, and that his attorney was ineffective in failing

to inform defendant that his sentence could be increased by the cocaine

transactions and in failing to object to the government’s breach of the plea

agreement. Attached to defendant’s motion was an affidavit setting forth the

substance of his claims. The government’s response included an affidavit by

defendant’s former attorney, describing the plea negotiations, his advice to

defendant, and defendant’s ultimate choice to plead to the possession count rather

than cooperate with the government and reduce his sentence.

      The matter was referred to a magistrate judge, who determined that the

record was sufficient to review adequately defendant’s claims without an

evidentiary hearing. The magistrate judge recommended that defendant’s motion

be denied, finding that defendant knew he would be held accountable at

sentencing for his involvement in the cocaine transactions, and that his attorney


1
       We note that defendant’s § 2255 motion was filed several years after his
direct appeal was decided. On April 24, 1996, while his motion was pending on
appeal, the President signed into law the Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214. The Act, inter alia,
amends 28 U.S.C. § 2255 to require, under most circumstances, that motions be
brought within one year after a defendant’s conviction becomes final. Because
this requirement would attach new legal consequences to events completed before
its enactment, it does not operate to preclude this appeal. See United States v.
Lopez,100 F.3d 113, 116-17 (10th Cir. 1996).

                                        -3-
was not ineffective. The district court adopted the magistrate judge’s findings

and recommendation, and this appeal followed.

      On appeal, defendant argues that (1) his sentence was improperly increased

based on unreliable information linking him to the cocaine transactions; (2) the

government breached the plea agreement by failing to recommend that his

sentence be limited to involvement in the marijuana offense, with a sentence of no

more than seventy months; (3) his attorney was ineffective in failing to object to

the sentence increase or the alleged breach of the plea agreement; and (4) the

district court erred in not holding an evidentiary hearing.

      When reviewing the denial of a § 2255 motion, we review the district

court's legal rulings de novo, and its findings of fact for clear error. United

States v. Cox, 83 F.3d 336, 338 (10th Cir. 1996). Whether government conduct

has violated a plea agreement presents a question of law which we review de

novo. United States v. Robertson, 45 F.3d 1423, 1442 (10th Cir.), cert. denied,

116 S. Ct. 133 (1995). In addition, “[a] claim of ineffective assistance of

counsel presents a mixed question of law and fact which we review de novo.”

Brewer v. Reynolds, 51 F.3d 1519, 1523 (10th Cir. 1995), cert. denied, 116 S. Ct.

936 (1996). Finally, the district court’s denial of an evidentiary hearing is

reviewed for an abuse of discretion. Lasiter v. Thomas, 89 F.3d 699, 702 (10th

Cir.), cert. denied, 117 S. Ct. 493 (1996).


                                          -4-
      We note that defendant’s first argument regarding the reliability of the

information linking him with the cocaine transactions was not raised to the

district court. Absent compelling reasons, we will not address an issue for the

first time on appeal. See United States v. Strahl, 958 F.2d 980, 983 (10th Cir.

1992). Even if defendant had raised the issue, however, we would not consider it,

because it was previously decided by this court on the merits. See Cox, 83 F.3d

at 342. “Absent an intervening change in the law of a circuit, issues disposed of

on direct appeal generally will not be considered on a collateral attack by a

motion pursuant to 2255.” United States v. Prichard, 875 F.2d 789, 791 (10th

Cir. 1989).

      Regarding plaintiff’s claim that the government breached the plea

agreement, there is no evidence that the agreement contained any promise to limit

his sentence offense level to the 1,200 pounds of marijuana, or that he was

promised a sentence of less than seventy months. “[T]he party who asserts a

breach of a plea agreement has the burden of proving the underlying facts that

establish a breach by a preponderance of the evidence.” Allen v. Hadden, 57 F.3d

1529, 1534 (10th Cir.), cert. denied, 116 S. Ct. 544 (1995).

      In his affidavit, defendant does not actually allege that these promises were

terms of the plea agreement, but simply states that this was his understanding at

the time he pled guilty. See R. I, affidavit attached to doc. 1. In contrast,


                                          -5-
defendant’s attorney states in his affidavit that the agreement did not contain such

terms, and that defendant understood his sentence would probably be based on the

cocaine amounts as well, increasing the range to between 108 and 135 months.

See id., doc. 5, ex. A.

      Defendant appears to argue that the government’s agreement to dismiss the

other counts implicitly included a promise that he would not be sentenced for the

conduct underlying those counts. The sentencing guidelines specifically allow a

sentence to rest on such conduct, however. See U.S.S.G. § 1B1.3(a)(2) and

commentary thereto (defining "relevant conduct" to include quantities and types

of drugs not specified in the offense of conviction if they “were part of the same

course of conduct or common scheme or plan as the offense of conviction");

United States v. McGee, 7 F.3d 1496, 1499 (10th Cir.1993)(holding proper

government’s use at sentencing of conduct underlying counts that plea agreement

agreed to dismiss); United States v. Frederick, 897 F.2d 490, 492 n.2 (10th Cir.

1990)(noting, in dicta, that so long as defendant was not convicted of any crime

except the one to which he pled guilty, government did not breach agreement to

dismiss other counts by presenting evidence of dismissed counts for sentencing

purposes). Although we examine a plea agreement based on the defendant’s

reasonable understanding of it, Robertson, 45 F.3d at 1442, here defendant’s

understanding was not “reasonable” in light of the lack of an express promise to


                                         -6-
limit his offense level and the sentencing guidelines’ requirement that the cocaine

transactions be taken into account. See, e.g., Cunningham v. Diesslin, 92 F.3d

1054, 1059-60 (10th Cir. 1996)(holding defendant’s understanding at time of plea

did not control because it was neither an explicit nor implicit part of the plea

agreement); United States v. Hand, 913 F.2d 854, 856 (10th Cir. 1990)(holding

plea agreement could not be reasonably interpreted to contain a particular

promise).

      Further, although defendant now argues on appeal that the plea included a

promise to limit his sentence to seventy months, his affidavit contradicts this

allegation, stating that his attorney told him his sentence would be between

seventy and eighty-seven months. R. I, affidavit attached to doc. 1. Moreover, at

the plea hearing, defendant was informed that he could be sentenced from five to

forty years if he had no prior drug convictions, and from ten years to life if he had

such convictions. R. II at 9-10. He was also informed that depending on the

crime for which he was currently incarcerated, the sentencing guidelines called

for a sentence between 97 and 135 months. Id. at 12. After stating that he

understood this, id. at 14, he told the court that he had not received any promises

regarding a lighter sentence if he pled guilty; that he understood his sentence was

solely within the court’s control; and that he was in the hands of God and the

court as far as the time he would receive, id. at 21. He also agreed that the plea


                                          -7-
agreement called for dismissal of two counts in return for his guilty plea on the

third, without raising his belief that the agreement also restricted his sentence to

seventy months. Id. at 22. At that time, defendant’s attorney acknowledged that

this was the “[plea] agreement in its entirety.” Id. at 22-23.

      “The truth and accuracy of [defendant’s] statements are regarded as

conclusive in the absence of a believable reason justifying departure from their

apparent truth.” United States v. Bambulas, 571 F.2d 525, 526 (10th Cir. 1978).

Here, although defendant’s ability to speak English was limited, he was fully

assisted by a translator at all court proceedings and when meeting with his

attorney. Further, although he had many opportunities to raise the issue,

defendant did not inform either the district court or this court of the government’s

alleged breach of the plea agreement until four years later, when he filed this

§ 2255 motion. He has not shown, therefore, a believable reason to depart from

the apparent truth of his statements to the court at the plea hearing.

      The evidence also supports the district court’s finding that defendant’s

attorney provided effective assistance of counsel. Defendant argues that his

attorney was ineffective in failing to challenge use of the cocaine transactions to

increase his sentence and in failing to object to the government’s breach of the

plea agreement. The record belies the first claim, however, showing that

defendant’s attorney fully litigated the propriety of increasing defendant’s


                                          -8-
sentence with the cocaine amounts, both at the sentencing hearing and on appeal.

As for the second claim, defendant’s failure to show that the government

breached the plea agreement negates his claim that his attorney acted

unreasonably in failing to object to any such breach.

      Finally, the district court did not abuse its discretion in denying an

evidentiary hearing in this case. When the terms of a plea are described on the

record and are acknowledged by a defendant, his later allegation that such

statements were untrue will require a hearing “only in the most extraordinary

circumstances.” Blackledge v. Allison, 431 U.S. 63, 80 n.19 (1977). This is

especially true when the court gives the defendant a “full opportunity for

presentation of the relevant facts” through “affidavits from all persons likely to

have firsthand knowledge.” Id. at 82-83 & n.25. Here, defendant’s conclusory

allegations regarding the plea agreement terms, which contradict the record made

at the plea hearing, were insufficient to require an evidentiary hearing. See

Lasiter, 89 F.3d at 702-03.




                                         -9-
     The judgment of the United States District Court for the Eastern District of

Oklahoma is AFFIRMED. The mandate shall issue forthwith.



                                                  Entered for the Court



                                                  David M. Ebel
                                                  Circuit Judge




                                      -10-
