                                                                                      FILED
                                                                          United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                              Tenth Circuit

                             FOR THE TENTH CIRCUIT                              August 24, 2016
                         _________________________________
                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                             No. 16-3151
                                                   (D.C. Nos. 2:14-CV-02536-WPJ and
STEVEN CARMICHAEL WARREN,                                2:11-CR-20040-WPJ-1)
                                                                (D. Kan.)
      Defendant - Appellant.
                      _________________________________

                ORDER DENYING CERTIFICATE OF APPEALABILITY*
                     _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

       Steven Carmichael Warren, a federal prisoner appearing pro se, seeks a certificate

of appealability (“COA”) to challenge the district court’s denial of his 28 U.S.C. § 2255

motion to vacate, set aside, or correct his sentence. See 28 U.S.C. § 2253(c)(1)(B)

(requiring a COA to appeal an order denying a § 2255 motion). Exercising jurisdiction

under 28 U.S.C. § 1291, we deny a COA and dismiss this matter.




       * This order is not binding precedent, except under the doctrines of law of the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.
                                   I. BACKGROUND

       A grand jury returned an indictment charging Mr. Warren with (1) carrying a

firearm during and in relation to and in furtherance of a crime of violence in violation of

18 U.S.C. § 924(c); (2) armed robbery in violation of 18 U.S.C. § 2113(a), (d); and (3)

being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2),

and 924(e). ROA, Vol. I at 8-9; see also United States v. Warren, 737 F.3d 1278, 1281

(10th Cir. 2013).

       Mr. Warren pled guilty to the armed-robbery count, and the Government

dismissed the others. The plea agreement stated:

              3. Application of the Sentencing Guidelines. The parties are not
       requesting imposition of an advisory guideline sentence. There is no
       agreement between the parties as to the sentence to be imposed. The
       defendant is free to ask the Court to impose whatever sentence he wants.
       Likewise, the government is free to ask the Court to impose whatever
       sentence it deems appropriate. The parties understand this agreement binds
       the parties only and does not bind the Court.

ROA, Vol. I at 21. The agreement also stated the Government would recommend a

three-level reduction for acceptance of responsibility. Id. at 21-22. The Government did

so at the sentencing hearing.

       The presentence report listed Mr. Warren’s previous convictions, “including an

earlier federal felony conviction for armed bank robbery, a felony conviction for the sale

of a PCP-laced cigarette, a felony conviction for child abuse, and over a dozen

misdemeanor convictions—the majority of which involved violent conduct.” Warren,

737 F.3d at 1281. Based on Mr. Warren’s prior convictions, the district court determined

he qualified as a career criminal. The total offense level of 31 and a criminal history


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category of VI resulted in a United States Sentencing Guidelines range of 188 to 235

months. The Government sought an upward variance to 300 months in prison. Mr.

Warren’s counsel argued that the district court’s career-criminal ruling “already [took]

into account all of [Mr. Warren’s] criminal conduct” and that the court should not use the

convictions as a basis for the upward variance. ROA, Vol. I at 118, 126-27. The district

court granted the Government’s upward variance based on a number of factors, including

Mr. Warren’s prior convictions.

       Mr. Warren challenged his sentence on direct appeal; this court affirmed. Warren,

737 F.3d at 1280.

       He then brought a 28 U.S.C. § 2255 motion, arguing his plea counsel rendered

ineffective assistance by failing to (1) object to the purported untimeliness of the

Government’s request for an upward variance, (2) request an evidentiary hearing at

sentencing, (3) object to the district court’s consideration of prior convictions as a basis

for the upward variance (i.e., double counting his criminal conduct), (4) object to the

adequacy of the district court’s explanation for the variance, and (5) assert the

Government breached the plea agreement. He also argued his appellate counsel was

ineffective for failing to raise these arguments on direct appeal.

       The district court rejected each argument in a thorough and well-reasoned order.

Mr. Warren now seeks a COA on the third and fifth issues, arguing his plea counsel was

ineffective.




                                              -3-
                                     II. DISCUSSION

                                  A. Legal Background

       Mr. Warren may not appeal the district court’s denial of his § 2255 motion without

a COA. 28 U.S.C. § 2253(c)(1)(B). To obtain a COA, he must make “a substantial

showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and show “that

reasonable jurists could debate whether . . . the petition should have been resolved in a

different manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted).

       Mr. Warren seeks a COA on two issues involving ineffective assistance of

counsel. The Supreme Court has held that the Sixth Amendment right to counsel

includes a right to effective representation. Strickland v. Washington, 466 U.S. 668, 686

(1984). We first consider whether “counsel’s performance was deficient.” Id. at 687.

Mr. Warren must show that his attorney’s “representation fell below an objective

standard of reasonableness.” Id. at 688. We then consider prejudice by asking “whether

counsel’s constitutionally ineffective performance affected the outcome of the plea

process.” Hill v. Lockhart, 474 U.S. 52, 59 (1985) (applying the Strickland standard in

the plea context). “[T]o satisfy the ‘prejudice’ requirement, the defendant must show that

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.” Id.

                                       B. Analysis

       Mr. Warren first argues his counsel was ineffective for failing to object when the

district court relied on his prior convictions as a basis for both the career-criminal


                                              -4-
classification and the upward variance. The district court rejected this argument because

Mr. Warren’s counsel raised the issue at the sentencing hearing and urged the court not to

consider the prior convictions in ruling on the variance. The district court concluded that

“counsel’s argument on double counting was well within the wide range of reasonable

professional assistance.” ROA, Vol. I at 187. For substantially the same reasons given in

the district court’s order, we conclude that no reasonable jurist could debate the

correctness of the court’s ruling on this issue.

       Next, Mr. Warren contends his counsel was ineffective for failing to argue the

Government breached the plea agreement insofar as it required the Government to move

for a three-level reduction for acceptance of responsibility. In denying the § 2255

motion, the district court concluded there was no breach because the Government

fulfilled its obligation under the plea agreement to recommend the reduction. The court

further noted the plea agreement “explicitly permitted both parties to ask for a non-

guideline sentence including any sentence that they deemed appropriate.” Id. at 190. For

substantially the same reasons stated by the district court, we conclude the district court’s

rejection of Mr. Warren’s argument is beyond debate.

                                    III. CONCLUSION

       We deny Mr. Warren’s application for a COA and dismiss this matter.

                                               ENTERED FOR THE COURT,



                                               Scott M. Matheson, Jr.
                                               Circuit Judge



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