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

                       FOR THE TENTH CIRCUIT                      May 4, 2015
                       _________________________________
                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

v.                                                  No. 15-1015
                                        (D.C. Nos. 1:13-CV-02475-PAB and
ROBERT T. McALLISTER,                         1:11-CR-00283-PAB-1)
                                                   (D. Colorado)
       Defendant-Appellant.

                       _________________________________

                                   ORDER
                       _________________________________

Before GORSUCH, MCKAY, and BACHARACH, Circuit Judges.
                 _________________________________


     Mr. Robert McAllister was an attorney charged with conspiracy, wire

fraud, and bankruptcy fraud. He and the prosecutors entered a plea

agreement, stipulating to certain facts. In the plea agreement, the

government agreed not to take any positions inconsistent with the

stipulated facts. Based on this agreement, Mr. McAllister pleaded guilty.

     At sentencing, the government recommended a stiff sentence in part

because Mr. McAllister had engaged in a “crime spree” and violated court

orders issued by Judge Limbaugh (a federal district judge), Judge Arguello

(a federal district judge), Judge Brooks (a bankruptcy judge), and
Judge Munsinger (a state district judge). In Mr. McAllister’s view, the

government’s argument at sentencing constituted a breach of the plea

agreement and defense counsel should have objected. The district court

ultimately sentenced Mr. McAllister to concurrent prison terms of 78 and

60 months.

      Mr. McAllister sought vacatur of the conviction under 28 U.S.C.

§ 2255, and the federal district court denied relief. With this ruling,

Mr. McAllister seeks to appeal on grounds that (1) the prosecutor breached

the plea agreement, (2) defense counsel was ineffective in failing to object,

and (3) the district court erred in imposing the sentence. To appeal, Mr.

McAllister needs a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B)

(2012). We decline to issue the certificate and dismiss the appeal.

I.    Standard for a Certificate of Appealability

      We can issue the certificate of appealability only if Mr. McAllister

has made “a substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2) (2012). This showing has been made only if reasonable

jurists could find the issue debatable. Slack v. McDaniel, 529 U.S. 473,

483-84 (2000).




                                       2
II.   Breach of the Plea Agreement

      In urging a breach of the plea agreement, Mr. McAllister argues that

the government should not have said he had engaged in a “crime spree” and

violated court orders by Judges Limbaugh, Arguello, Brooks, and

Munsinger. No reasonable jurist could credit these arguments.

      The plea agreement expressly allowed the parties to present the

district court with additional facts relevant to sentencing. Plea Agreement

at 4. The only limitation was that the additional facts could not contradict

the stipulated facts. Id. at 4-5.

      Mr. McAllister stipulated that he had participated in a five-year

conspiracy and a scheme to embezzle funds. The government referred to

this five-year scheme as a “crime spree” and repeated some of the

conclusions reached by the probation department. Government’s Resp. to

Def’s Mot. to Stay Surrender at 2-6. The government’s characterization as

a “crime spree” did not conflict with any of the stipulated facts.

      In the presentence report, the probation department stated that

Mr. McAllister had perpetrated the scheme “to circumvent” orders issued

by Judges Limbaugh, Arguello, Brooks, and Munsinger. Presentence

Report at 7, ¶ 22. Mr. McAllister does not (and cannot) challenge the

statements in the presentence report, for he has confined his claim to


                                      3
prosecutorial misconduct and the probation department was not part of the

prosecution. 1 Instead, Mr. McAllister alleges prosecutorial misconduct

based on the government’s repetition of what the probation department had

said about violations of court orders.

      In repeating the probation department’s conclusions, the government

did not mention any orders issued by Judge Brooks. Instead, the

government focused on the orders by Judges Limbaugh, Arguello, and

Munsinger. But, there is nothing in the plea agreement that would have

prohibited the government from urging a violation of orders issued by

Judges Limbaugh, Arguello, or Munsinger. See, e.g., United States v.

Noriega, 760 F.3d 908, 911 (8th Cir. 2014) (holding that the government’s

introduction of additional evidence at sentencing did not breach the plea

agreement because there was no provision limiting the scope of relevant

conduct or defining the defendant’s role in the offense); United States v.

Lococo, 511 F.3d 956, 959 (9th Cir. 2007) (per curiam) (stating that when

the plea agreement reserved the right of the government to supplement the

stipulated facts, its offer of additional evidence at sentencing did not
1
      In United States v. Easterling, we held that a plea agreement cannot
restrict the court’s access to relevant information. 921 F.2d 1073, 1079-80
(10th Cir. 1990). We explained that even though a plea agreement might
prevent the prosecutor from supplying additional information to the court,
the probation officer would remain free to supply additional information
within the parameters of the sentencing guidelines. Id. at 1080.

                                         4
constitute a breach of the plea agreement), amended, 514 F.3d 860 (9th

Cir. 2008) (per curiam).

      Mr. McAllister admits he violated the “spirit” of Judge Limbaugh’s

orders. Sent. Tr. at 26. But Mr. McAllister complains that he did not admit

intentional violation of Judge Limbaugh’s orders. This complaint is invalid

because Mr. Allister does not point to a conflict with a stipulated fact.

      Stipulations about Judge Munsinger’s order also appeared in the plea

agreement. There the parties stipulated to three facts:

      1.    Judge Munsinger had frozen all assets held by Mr. Terry
            Vickery (a client of Mr. McAllister’s),

      2.    Mr. Vickery had transferred $100,000 to Mr. McAllister in
            violation of the freeze order, and

      3.    Mr. McAllister, “fully aware of this freeze order,” had
            transferred $80,300 out of these funds to Ms. Shannon
            Neiswonger (a client of Mr. McAllister’s).

Plea Agreement at 6-7.

      In its sentencing brief, the government referred to these stipulated

facts, saying:

      1.    Judge Munsinger had ordered surrender of Mr. Vickery’s
            assets,

      2.    Mr. Vickery had transferred $100,000 to Mr. McAllister, and

      3.    Mr. McAllister, fully aware of the freeze order, had transferred
            $80,300 of these funds to the Neiswongers.


                                      5
      Mr. McAllister says why he regards the government’s statement as

inaccurate, 2 but he does not say how it conflicts with the stipulated facts.

No conflict is readily apparent, for the government’s recitation appears to

simply repeat the three facts stipulated in the plea agreement.

      Judge Arguello’s order is not mentioned in the plea agreement. But

the probation department discusses this order, and the government repeated

five of the probation department’s conclusions about Judge Arguello’s

order:



2
     Mr. McAllister argues that the government’s recitation was
inaccurate because

      1.    Judge Munsinger’s freeze order applied only to funds
            transferred from the partnership accounts to Mr. Vickery’s
            wife since December 2009 (rather than to all of the
            Vickery assets), and

      2.    the $100,000 payment was for legal services and did not violate
            the order.

The first argument flatly contradicts the stipulations in the plea agreement.
There, Mr. McAllister agreed that “[Judge] Munsinger had entered an order
that all assets and interests of Vickery were to be surrendered and held in
trust for the plaintiff in the action.” Plea Agreement at 7. The second
argument (that the $100,000 was for legal services) may be true; the
government never said anything to the contrary. But Mr. McAllister
admitted under oath that he had transferred the funds without
Mr. Vickery’s authorization or relief from the freeze order. Stipulation at
3-6, Colorado v. McAllister, No. 11-PDJ-48 (Colo. June 6, 2011). For these
actions, Mr. McAllister admitted (again under oath) that he had violated
Colorado’s ethical rules for attorneys. Id. at 3-4, 6.

                                       6
       1.    In 2009, the Securities and Exchange Commission had initiated
             an enforcement action in the District of Colorado.

       2.    The assigned judge, Judge Arguello, had frozen all funds raised
             from investors.

       3.    Mr. McAllister had appeared in court for all of the defendants.

       4.    Two days later, Judge Arguello had entered an order,
             continuing the freeze on all funds.

       5.    The same day, one of the defendants had transferred $80,000 to
             Mr. McAllister, who in turn transferred some of the money to
             his son, who in turn transferred the money to Ms. Neiswonger.

Government’s Resp. in Opp’n to Def’s Mot. to Stay Surrender at 5.

       Mr. McAllister argues that these statements are inaccurate. But Mr.

McAllister does not say how these statements conflict with anything in the

plea agreement. Judge Arguello’s order is not even mentioned in that

document.

       Without any information reflecting a conflict between the

government’s statements and the stipulated facts, no reasonable jurist

could credit Mr. McAllister’s argument involving breach of the plea

agreement.

III.   Ineffective Assistance of Counsel

       According to Mr. McAllister, his trial counsel was ineffective for

failing to object to the government’s arguments at sentencing. Again, no



                                      7
reasonable jurist could debate the validity of the ineffective assistance

claim.

      For ineffective assistance, Mr. McAllister would need to show that

his trial counsel was deficient and that this deficiency resulted in

prejudice. United States v. Cruz, 774 F.3d 1279, 1284 (10th Cir. 2014). In

considering these elements, we focus on the actions of the trial attorney

and Mr. McAllister.

      When the government alleged a crime spree and violation of court

orders, Mr. McAllister’s trial counsel contended that all of the relevant

conduct was in the plea agreement. Unhappy with the attorney’s argument,

Mr. McAllister filed his own brief. After Mr. McAllister and his attorney

objected, the district court stated that it would not consider violation of

orders issued by anyone other than Judge Limbaugh.

      For a claim of ineffective assistance, Mr. McAllister would need to

show that his attorney should have done more and that if he had, the

sentence would probably have been lighter. See id. And, we have already

concluded that no reasonable jurist could find breach of the plea

agreement. Thus, further objections by trial counsel would have been

pointless. In these circumstances, no reasonable jurist could debate the

validity of Mr. McAllister’s ineffective assistance claim.


                                       8
IV.   Errors by the District Court

      Mr. McAllister casts blame not only on the government and his trial

counsel, but also on the district court. In Mr. McAllister’s view, the

district court erred by failing (1) to permit an evidentiary hearing on the

allegation involving violation of court orders, (2) to recommend

participation in a drug abuse program, and (3) to reassign the case to

another judge. No reasonable jurist would credit any of these arguments.

      A.    Evidentiary Hearing

      Mr. McAllister argues that the district court should have conducted

an evidentiary hearing, where he could have disputed the government’s

allegation involving violation of court orders. Any reasonable jurist would

regard an evidentiary hearing as unnecessary. 3

      The district court stated that it would disregard the allegation

involving violation of orders by any judge other than Judge Limbaugh. 4

3
       In urging an evidentiary hearing, Mr. McAllister relies on Federal
Rule of Criminal Procedure 32. But we have held that judges cannot issue a
certificate of appealability on claims based on Rule 32. United States v.
Gordon, 172 F.3d 753, 755 (10th Cir. 1999).
4
      Mr. McAllister questions this statement based on the sentencing
court’s reference to “court orders” in the plural. Appellant’s Br. at 4-5. But
the sentencing court never attributed these orders to Judges Arguello,
Brooks, or Munsinger. In making this argument, Mr. McAllister ignores the
context of the sentencing judge’s statement. The sentencing judge was
referring to violation of an order by Judge Limbaugh, and Mr. McAllister
had admitted violation of the spirit of Judge Limbaugh’s order.
                                       9
Thus, Mr. McAllister ultimately obtained all he could have obtained

through an evidentiary hearing: disregard of the government’s allegation

involving violation of orders issued by Judges Arguello, Brooks, and

Munsinger. In these circumstances, we decline to issue a certificate of

appealability on the denial of an evidentiary hearing.

      B.    Drug Treatment Program

      Mr. McAllister also complains that the district court should have

recommended placement in a drug-abuse treatment program. But no

reasonable jurist could credit this claim.

      Courts do not determine whether an inmate can participate in a drug-

abuse program. See Tapia v. United States, __ U.S. __, 131 S. Ct. 2382,

2390-91 (2011) (stating that the Bureau of Prisons has plenary control over

placement and treatment programs for prisoners). That decision is made by

the Bureau of Prisons. Id.

      Judges can make recommendations; 5 and, for the sake of argument,

we can assume that the district court should have made this

recommendation for Mr. McAllister. Even with this assumption, however,

the claim would fail. This claim would require proof of a statutory error

resulting in a complete miscarriage of justice or an inconsistency with the


5
      Tapia, 131 S. Ct. at 2390-91.

                                      10
rudimentary requirements of fair procedure. United States v. Talk, 158 F.3d

1064, 1069 (10th Cir. 1998), abrogated on other grounds as recognized in

United States v. Harms, 371 F.3d 1208, 1210 (10th Cir. 2004). No

reasonable jurist could regard the absence of a recommendation for drug

treatment as a complete miscarriage of justice or an inconsistency with the

rudimentary requirements of fair procedure.

      C.    Reassignment to a New Judge

      Finally, Mr. McAllister argues that once the sentencing judge was

“tainted” by the government’s improper arguments, the case should have

been reassigned to a new judge. For this argument, Mr. McAllister relies

on United States v. Heredia, 768 F.3d 1220, 1236 (9th Cir. 2014). This

argument applies only if the government breached the plea agreement, 6 and

we have concluded above that no reasonable jurist could find breach of the

plea agreement. As a result, we decline to issue a certificate of

appealability on the issue involving reassignment to another judge.




6
      Heredia, 768 F.3d at 1236.
                                      11
V.    Summary

      No reasonable jurist could credit any of Mr. McAllister’s proposed

appellate arguments. As a result, we decline to issue a certificate of

appealability and dismiss the appeal.

                                    Entered for the Court



                                    Robert E. Bacharach
                                    Circuit Judge




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