                                                                         FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                 October 22, 2015
                               TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                    Clerk of Court

 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

 v.                                                    No. 15-4043
                                            (D.C. Nos. 2:12-CV-00678-RJS and
 MACIEL LEYVA GARCIA,                             2:12-CR-00065-DB-1)
                                                       (D. of Utah)
             Defendant - Appellant.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before TYMKOVICH, Chief Judge, BALDOCK, and HARTZ, Circuit Judges.


      Maciel Leyva Garcia, proceeding pro se, 1 seeks a certificate of

appealability (COA) to appeal the district court’s denial of his motion under 28

U.S.C. § 2255 to vacate, set aside, or correct his sentence. See 28 U.S.C.

§ 2253(c)(1)(B) (requiring COA to appeal denial of § 2255 motion). Exercising

jurisdiction under 28 U.S.C. § 1291, we deny a COA and dismiss the appeal.




      *
         This order is not binding precedent except under the doctrines of law of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.
      1
        We construe pro se filings liberally. Standifer v. Ledezma, 653 F.3d
1276, 1277 n.1 (10th Cir. 2011).
                                I. Background

      In February 2007, the government filed a criminal complaint against Garcia

and two co-defendants. Count I charged the co-defendants, but not Garcia, with

distribution or possession with intent to distribute 500 grams of

methamphetamine. See 21 U.S.C. § 841(a)(1). Count II charged Garcia and his

co-defendants with conspiracy to distribute or possess with intent to distribute

500 grams of methamphetamine. See id. §§ 841(a)(1), 846. For unknown

reasons, the complaint stated that both counts were punishable under 21 U.S.C.

§ 841(b)(1)(B). That section provides for a sentence between five and forty

years’ imprisonment where the crime involves five grams or more of

methamphetamine. Id. § 841(b)(1)(B)(viii). But in fact, both charges in the

complaint are punishable under subsection (A), which requires a more severe

sentence of ten years to life imprisonment where the amount exceeds fifty grams.

Id. § 841(b)(1)(A)(viii).

      After arresting Garcia in 2009, the government filed a felony information

charging him with essentially the same crime listed in the complaint: conspiracy

to distribute fifty grams or more of methamphetamine, in violation of 21 U.S.C.

§§ 841(a)(1) and 846. This time, the information correctly stated that he would

be punished under 21 U.S.C. § 841(b)(1)(A)—ten years to life imprisonment. But

Garcia alleges that his counsel consistently told him he faced a minimum of five



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years and a maximum of forty. Counsel predicted that Garcia would receive

seven or eight years.

      Garcia pleaded guilty on counsel’s advice. He waived his right to an

appeal or collateral review. The district court sentenced him to 210 months in

prison, the low end of the range recommended by the United States Sentencing

Guidelines. Garcia asked his counsel to appeal, but received no response. Garcia

then brought this habeas petition, alleging ineffective assistance of counsel during

and after the plea process. The district court denied the motion because it was

clear at the time of the plea that Garcia faced a single count carrying a sentence

of ten years to life imprisonment.

                                     II. Analysis

      Although Garcia waived his right to collateral review, that does not bar him

from bringing “ineffective assistance of counsel claims challenging the validity of

the plea or the waiver.” United States v. Cockerham, 237 F.3d 1179, 1187 (10th

Cir. 2001). We therefore consider this petition. In doing so, we review the

district court’s legal determinations de novo and its factual conclusions for clear

error. English v. Cody, 241 F.3d 1279, 1282 (10th Cir. 2001). We only grant a

COA “if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). This requires demonstrating “that

reasonable jurists could debate whether (or, for that matter, agree that) the

petition should have been resolved in a different manner or that the issues

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presented were adequate to deserve encouragement to proceed further.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted).

      A. Counsel’s Performance During the Plea Process

      To succeed on a claim for ineffective assistance of counsel, Garcia must

show that his counsel’s performance was deficient and that the deficiency

prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).

There is a “strong presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance.” Id. at 689. To demonstrate prejudice in

the guilty plea context, Garcia “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.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).

      Garcia argues that his plea was involuntary and unknowing because he

thought he was pleading to a charge carrying a sentence between five and forty

years’ imprisonment. Specifically, he believed he was pleading to Count I of the

complaint, which he asserts is less severe than Count II. He claims that when the

government issued its felony information, he believed it was charging him with

Count I and not Count II. In addition, he alleges that his counsel bolstered the

misconception by erroneously advising him that he faced five to forty years,

rather than ten years to life. Garcia concludes that this was deficient performance

and that had counsel performed reasonably, Garcia would not have accepted the

plea. There are several flaws in this argument.

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      First, Count I of the complaint does not name Garcia. It only names his co-

defendants. Garcia is named in Count II, and there was never any suggestion that

he was subject to Count I. Second, the felony information plainly stated that

Garcia was charged with conspiracy—the crime alleged in Count II. Finally, as

noted above, Count II is not more severe than Count I. Conspiracy carries the

same sentence as the completed act, 21 U.S.C. § 846, and both counts involved

the same quantity of methamphetamine. Indeed, the complaint specified that both

crimes were subject to the same statutory penalty. Thus, the suggestion that

Garcia thought he was pleading to the lesser of two crimes appears unfounded.

      Of course, Garcia claims his counsel incorrectly advised him that he would

only receive five to forty years’ imprisonment. This may have flowed from the

complaint, which erroneously stated that Counts I and II were punishable under

21 U.S.C. § 841(b)(1)(B), when in fact they were punishable under 21 U.S.C.

§ 841(b)(1)(A) because they involved more than fifty grams of methamphetamine.

But while this was incorrect if given, we have routinely held that “[a]

miscalculation or erroneous sentence estimation by defense counsel is not a

constitutionally deficient performance rising to the level of ineffective assistance

of counsel.” United States v. Gordon, 4 F.3d 1567, 1570 (10th Cir. 1993), see

also United States v. Jordan, 516 F. App’x 681, 682 (10th Cir. 2013) (applying

Gordon where counsel explained the wrong maximum sentence); United States v.

Triplett, 402 F. App’x 344, 348 (10th Cir. 2010) (same); United States v. Kutilek,

                                         -5-
260 F. App’x 139, 147–48 (10th Cir. 2008) (applying Gordon where counsel

explained the wrong mandatory minimum).

      Moreover, even if counsel’s performance was deficient, Garcia cannot show

prejudice. His assertion that counsel’s error rendered the plea unknowing and

involuntary is undercut by his statement in advance of plea, in which he

acknowledged that he faced a sentence of ten years to life in prison. See United

States v. Silva, 430 F.3d 1096, 1100 (10th Cir. 2005) (holding that where a

defendant acknowledged awareness of the consequences of his plea agreement,

counsel’s erroneous explanation of the consequences was not prejudicial).

      Consequently, Garcia does not sufficiently allege ineffective assistance of

counsel. Reasonable jurists could not debate this conclusion.

      B. Counsel’s Performance at Judgment and Sentencing

      Garcia additionally argues that counsel was defective by failing to object at

judgment and sentencing. These claims fail because they depend on Garcia’s

assertion that counsel should have known there was something wrong with the

plea agreement. Garcia was adjudicated guilty of the crime specified in the plea

agreement, and he was sentenced within the statutory bounds for that crime. In

fact, he was sentenced at the lower end of his guidelines range. Thus, Garcia fails

to identify a ground upon which counsel should have objected.

      Reasonable jurists would not find this issue debatable.




                                        -6-
      C. Counsel’s Performance in Failing to Appeal

      Finally, Garcia argues that counsel was ineffective in disregarding his

instruction to appeal. Below, the government argued that Garcia’s collateral

attack waiver barred this claim. The district court agreed, and so do we. In

determining whether a collateral attack waiver is enforceable, we consider “(1)

whether the disputed appeal falls within the scope of the waiver of appellate

rights; (2) whether the defendant knowingly and voluntarily waived his appellate

rights; and (3) whether enforcing the waiver would result in a miscarriage of

justice . . . .” United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en

banc); see also United States v. Viera, 674 F.3d 1214, 1217 (10th Cir. 2012)

(applying Hahn to collateral attack waiver).

      Garcia’s § 2255 motion is outside the scope of the waiver to the extent that

it alleges “ineffective assistance of counsel . . . challenging the validity of the

plea or the waiver.” Cockerham, 237 F.3d at 1187. But his claim that counsel

was deficient in failing to appeal is unrelated to our review of whether counsel

was deficient during the plea process. See United States v. Parker, 720 F.3d 781,

787 (10th Cir. 2013) (denying COA where “ineffective assistance based on the

failure to file a requested appeal [was] within the scope of the [collateral attack]

waiver”). Moreover, Garcia cannot show that his waiver was unknowing or

involuntary because his statement in advance of plea expressly acknowledged that

he waived the right to bring a § 2255 motion. Nor do we perceive any

                                          -7-
miscarriage of justice. Accordingly, the district court did not err in enforcing the

collateral attack waiver. Id.

      In sum, reasonable jurists could not find room for debate.

                                 III. Conclusion

      For the foregoing reasons, we DENY a COA and DISMISS the appeal. We

GRANT Garcia’s motion to proceed in forma pauperis.

                                               ENTERED FOR THE COURT

                                               Timothy M. Tymkovich
                                               Chief Judge




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