                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                              JAN 10 2000
                               TENTH CIRCUIT
                          __________________________                     PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Defendant-Appellee,

 v.                                                       No. 99-2168
                                                            (D. N.M.)
 ORLANDO GELL-IREN,                              (D.Ct. No. CIV-99-83-LH/LCS)

          Plaintiff-Appellant.
                          ____________________________

                            ORDER AND JUDGMENT *


Before BRORBY, EBEL, and LUCERO, Circuit Judges.



      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.



      Appellant Orlando Gell-Iren appeals the district court’s decision denying


      *
          This order and judgment is not binding precedent except under the doctrines of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.
his 28 U.S.C. § 2255 motion. Because the district court granted a certificate of

appealability, we exercise jurisdiction under 28 U.S.C. § 2253(a) and affirm. 1



       The underlying facts concerning Mr. Gell-Iren’s conviction are outlined in

United States v. Gell-Iren, 146 F.3d 827, 829-30 (10th Cir. 1998). In short, the

government, after investigating Mr. Gell-Iren as a possible drug supplier, hired a

confidential informant who arranged a drug buy between a Federal Bureau of

Investigation agent and Mr. Gell-Iren. Id. at 829. During the transaction, Mr.

Gell-Iren handed the agent a bag containing ten ounces of heroin. Id. Law

enforcement officers then arrested Mr. Gell-Iren and subsequently found

additional small amounts of heroin in his van. Id. Following his arrest, Mr. Gell-

Iren made incriminating statements that he purchased the heroin, kept it overnight

in his van, and delivered the heroin to the buyer. Id. at 829-30. Nevertheless,

Mr. Gell-Iren pled “not guilty” and sought to suppress these statements,

contending he told agents he only understood his Miranda rights “a little bit” and

believed his statement would not be used against him. Id. at 830. Based on

credible evidence from agents who testified they fully informed him of his rights,



       1
           See Kanikaynar v. Sisneros, 190 F.3d 1115, 1117 (10th Cir. 1999), petition for
cert. filed (U.S. Nov. 5, 1999) (No. 99-6896). In addition, we grant the government’s
motion to supplement record.


                                            -2-
the trial court found Mr. Gell-Iren’s testimony incredible, determined he

voluntarily waived his rights, and allowed admission of his confession into

evidence. Id.



      At trial, Mr. Gell-Iren testified he never knew the substance in the package

contained heroin. Id. at 829. Rejecting this testimony, a jury convicted Mr. Gell-

Iren of possessing heroin with intent to distribute. Id. at 830. At his sentencing

hearing, Mr. Gell-Iren continued to assert his innocence, stating “Your Honor,

what I have to say, I have already said it at the trial. I told all the truth.” The

trial court sentenced Mr. Gell-Iren to 94 months imprisonment. Id.



      Mr. Gell-Iren filed a direct appeal: (1) claiming the trial court improperly

admitted his post-arrest statement into evidence; (2) accusing the government of

outrageous conduct in using an informant; and (3) claiming ineffective assistance

of counsel for failure to raise either the issue of outrageous conduct or

entrapment. Id. at 829. We affirmed Mr. Gell-Iren’s conviction and sentence as

to the first two issues, and declined to address the issue of ineffective assistance

of counsel on appeal, dismissing it without prejudice. Id. at 831-32.



      Thereafter, Mr. Gell-Iren filed his § 2255 motion raising his claim of


                                           -3-
ineffective assistance of counsel. Specifically, Mr. Gell-Iren claimed his trial

counsel acted ineffectively by allowing him to proceed to trial rather than plead

“guilty.” He suggested if he had pled “guilty,” he would have qualified for a

sentence reduction under the United States Sentencing Guidelines, including a

two-level “safety value” reduction under U.S.S.G. § 5C1.2 and a three-level

reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. In addition,

even though his trial counsel pursued the defenses of entrapment and outrageous

conduct at trial, Mr. Gell-Iren argued his trial counsel acted ineffectively in

failing to raise these defenses prior to trial, and in not asking for jury instructions

on those defenses.



      A federal magistrate judge issued proposed findings and a recommendation

Mr. Gell-Iren’s § 2255 motion be dismissed, finding his trial counsel did not act

ineffectively in light of Mr. Gell-Iren’s continued assertion of innocence. In

finding Mr. Gell-Iren continued to assert his innocence, the magistrate judge

relied on Mr. Gell-Iren’s counsel’s attempt to suppress his confession as proof

that Mr. Gell-Iren maintained his “innocence” before trial. In addition, the

magistrate judge reasoned if his counsel had known his client’s assertion of

innocence at trial would be false, he would have had an ethical obligation either

to prevent him from testifying or to withdraw from representation. As a result of


                                           -4-
Mr. Gell-Iren’s continued assertion of innocence, the magistrate judge determined

it would not be “objectively unreasonable” for his counsel to forego explaining

“what would happen if [he] were to accept full responsibility for the crime.” 2 As

to the outrageous conduct and entrapment claim, the magistrate judge determined

a reasonable probability existed that any attempt by his counsel to raise these

issues would have been unsuccessful in light of Mr. Gell-Iren’s unsuccessful

appeal of the same issues. 3



      The district court adopted the magistrate judge’s proposed findings and

recommendations and dismissed Mr. Gell-Iren’s § 2255 motion. Thereafter, the

district court granted Mr. Gell-Iren’s request for a certificate of appealability,


      2
          In this case, the district court did not hold a hearing to determine whether
counsel failed to explain to Mr. Gell-Iren the consequences of his continuing to plead
guilty after the suppression hearing.

      3
          The magistrate judge also addressed Mr. Gell-Iren’s claim that if he pled
“guilty,” he would have been eligible for a reduction in his sentence for “acceptance of
responsibility” under U.S.S.G. § 3E1.1. The magistrate judge determined Mr. Gell-Iren’s
counsel’s performance did not prejudice Mr. Gell-Iren because his continued assertion of
innocence minimized any chance of receiving a sentence reduction for acceptance of
responsibility. Although the magistrate judge did not directly address Mr. Gell-Iren’s
“safety value” argument under U.S.S.G. § 5C1.2, the magistrate judge found he supplied
incredible and perjured testimony at his suppression hearing. Sentencing Guideline
§ 5C1.2(5) requires a defendant must have “truthfully provided to the Government all
information and evidence” he possessed concerning the offense in order to qualify for a
two-level sentence reduction.


                                           -5-
framing the issue on appeal as:

      [W]hether it is ineffective assistance of counsel when it is asserted
      that an attorney did not explain the option of pleading guilty and
      accepting responsibility for one’s crime, to a defendant when there is
      neither allegation nor any indication in the record that the defendant
      did anything accept [sic] assert his innocence to his attorney.


      On appeal, Mr. Gell-Iren frames the issue somewhat differently, focusing

the timing of this issue to his counsel’s advice after the suppression hearing and

stating “[a]t that point in time counsel had an obligation to tell [him] and should

have advised him that the penalties, should he lose, were onerous.”



      “[W]e review the district court’s legal rulings on a § 2255 motion de novo

and its findings of fact for clear error.” United States v. Pearce, 146 F.3d 771,

774 (10th Cir. 1998) (citing United States v. Cox, 83 F.3d 336, 338 (10th Cir.

1996)). Whether Mr. Gell-Iren received effective assistance of counsel is a mixed

question of law and fact we review de novo. United States v. Prows, 118 F.3d

686, 691 (10th Cir. 1997). “To prevail on a claim of ineffective assistance of

counsel, [Mr. Gell-Iren] ‘must show that counsel’s representation fell below an

objective standard of reasonableness’” and the deficient performance prejudiced

him. Id. (quoting Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). If Mr.

Gell-Iren fails to establish the second-prong of “prejudice,” the claim of

ineffective assistance of counsel fails even if the first prong is established.

                                          -6-
Strickland, 466 U.S. at 691-92. To show prejudice in the context of his sentence,

Mr. Gell-Iren must show a reasonable probability that, but for counsel’s alleged

error, the outcome of his sentence would have been different. Cf. United States v.

Boone, 62 F.3d 323, 327 (10th Cir.), cert. denied, 516 U.S. 1014 (1995) (relying

on Strickland, 466 U.S. at 694).



      Because Mr. Gell-Iren’s appeal limits the issue framed by the district court

to only events occurring after the unsuccessful attempt to suppress his confession,

we will not inquire into the reasons for Mr. Gell-Iren initially pleading “not

guilty” nor the adequacy of his counsel’s advice on how to plead up to that

juncture. Nevertheless, we recognize the initial decision on whether to plead

guilty is a complicated one which often must be made before the evidence is in

and the weight of the state’s case fully assessed. See McMann v. Richardson, 397

U.S. 759, 768-69 (1970) (describing, as a sensible choice, a defendant plea of

“not guilty” when he and his counsel believe his confession is inadmissible).



      We proceed to Mr. Gell-Iren’s claim of ineffective assistance of counsel

after the suppression hearing. We elect to by-pass a determination as to whether

his counsel acted ineffectively, instead proceeding to the prejudice prong under




                                         -7-
Strickland. 4 Even if his attorney performed ineffectively in not advising Mr.

Gell-Iren of the ramifications of the trial court’s admission of his confession into

evidence, Mr. Gell-Iren fails to show how his attorney’s performance caused him

prejudice. Specifically, he does not allege nor show a willingness by the

prosecution to enter plea negotiations recommending a sentence reduction, that

such a plea would have been acceptable to the court, or that he would have been

eligible for the sentence reduction provisions at issue. See Boone, 62 F.3d at 327.

Rather, Mr. Gell-Iren’s continued claim of innocence at the trial and sentencing

hearing evidence his clear reluctance to accept responsibility, weighing against a

reduction under U.S.S.G. § 3E1.1. Moreover, Mr. Gell-Iren’s continued assertion

of innocence despite credible and inculpatory evidence to the contrary, together

with his failure to tell the truth at his suppression hearing, weigh against

eligibility under U.S.S.G. § 5C1.2, which requires a defendant to have “truthfully

provided to the Government all information and evidence” he possessed

concerning the offense. See U.S.S.G. § 5C1.2(5). In sum, Mr. Gell-Iren has not

shown a reasonable probability of a sentence reduction if he changed his plea to



       4
         We may affirm a decision on grounds not relied on by the district court if
supported by the record. See United States v. Sandoval, 29 F.3d 537, 542 n.6 (10th Cir.
1994). In this case, the magistrate judge premised the recommendation of dismissal of
Mr. Gell-Iren’s § 2255 motion primarily on the first prong of Strickland, although the
magistrate judge did address prejudice to Mr. Gell-Iren, but in a more limited discussion.


                                            -8-
guilty after the suppression hearing.



      For these reasons, we AFFIRM the district court’s decision.



                                        Entered by the Court:

                                        WADE BRORBY
                                        United States Circuit Judge




                                         -9-
