                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                         APR 2 2001
                                    TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
 vs.                                                    No. 00-7051
                                                  (D.C. No. 99-CV-634-S)
 GREGORY GORDON,                                        (E.D. Okla.)

           Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges. **


       Gregory Gordon, an inmate appearing pro se, seeks to appeal from the

denial of his 28 U.S.C. § 2255 motion. Mr. Gordon pled guilty to possession with

intent to distribute cocaine base and criminal forfeiture and was sentenced to 180

months in accordance with the plea agreement and five years supervised release.

The court also ordered forfeiture of several items. On direct appeal, Mr. Gordon


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
challenged the district court’s imposition of a two-level upward adjustment based

upon his role in the offense pursuant to U.S.S.G. § 3B1.1(c). Because trial

counsel did not object to the adjustment and it did not constitute plain error, we

affirmed. United States v. Gordon, No. 97-7130, 1998 WL 704684, at * 2 (10th

Cir. Oct. 2, 1998).

      In his § 2255 motion, Mr. Gordon contends that (1) the government

breached the plea agreement by failing to file a substantial assistance motion

pursuant to 18 U.S.C. § 3553(e) and Fed. R. Crim. P. 35(b), (2) his plea was not

intelligently entered into because it lacked a factual basis, and (3) defense counsel

was ineffective for not objecting to the U.S.S.G. § 3B1.1(c) increase. The district

court reached only the ineffective assistance claim, holding that the other claims

were barred because they were not raised on direct appeal. R. Doc. 9.

      The plea agreement provided that the government could file a substantial

assistance motion within one year of sentencing. Aplt. Br. at 2. Hence, the claim

is not barred because this claim could not be raised on direct appeal–the

government had a year to act. On the merits, however, the claim fails. The plea

agreement indicates that the filing of such a motion is discretionary, i.e. “the

United States may, within one year after sentencing herein, move the Court to

order relief . . . .” R. Doc. 7 at 7. Also, Mr. Gordon has not shown cooperation

that would trigger the government’s obligations. Having determined that the


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government did not breach the plea agreement in this regard, the relevant focus

would be whether the government acted based upon an unconstitutional motive,

something not claimed here. United States v. Duncan, Nos. 00-2013, 00-2014,

2001 WL 237298, at * 6 (10th Cir. Mar. 9, 2001).

      At the change of plea hearing, Mr. Gordon admitted to “smoking a little

crack with the intention to sell some, keep my habit up, and that’s when I made

the purchase,” R. Doc. 7 at 8 (quoting Tr. at 29), and that the money to obtain the

items he forfeited came from crack sales and prostitution. Id. (quoting Tr. at 38).

Mr. Gordon’s admissions during the change of plea hearing are entitled to great

weight, see Blackledge v. Allison, 431 U.S. 63, 74 (1977), and a district court

may rely on any part of those proceedings in determining that a factual basis

exists under Fed. R. Crim. P. 11(f), United States v. Keiswetter, 860 F.2d 992,

995-96 (10th Cir.1988). Thus, Mr. Gordon’s claim that his plea was not knowing

and voluntary for want of a factual basis has no merit and we need not reach the

issue of procedural bar.

      Finally, we agree with the district court that defense counsel’s performance

was not deficient in failing to raise an objection to the § 3B1.1(c) role in the

offense adjustment, as the plea agreement expressly stated that “[t]he parties

contemplate a role adjustment pursuant to 3B1.1(c) of 2 levels.” R. Doc. 7 at 9

(quoting Doc. 47 at 3). Mr. Gordon has not shown that he would have insisted


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upon a trial had his counsel not acquiesced in the role in the offense adjustment.

Hill v. Lockhart, 474 U.S. 52, 57 (1985). That is a doubtful proposition given the

ten other drug-trafficking related counts that were dismissed pursuant to the plea

agreement.

      We DENY leave to proceed in forma pauperis, DENY a certificate of

appealability and DISMISS the appeal.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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