                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                       September 26, 2005
                                    TENTH CIRCUIT
                                                                          Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                      No. 05-8025
 JOEL PEREZ-AGUIRRE,                             (D.C. Civil No. 03-CV-215-B)
                                                 (D.C. Crim. No. 01-CR-038-B)
           Defendant-Appellant.                            (D.Wyo.)


                                 ORDER AND JUDGMENT      *




Before BRISCOE, LUCERO,             and MURPHY , Circuit Judges.


       Defendant Joel Perez-Aguirre, appearing pro se, appeals from the district

court’s denial of his motion to vacate, set aside, or correct his sentence pursuant

to 28 U.S.C. § 2255. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and

affirm. **


       This order and judgment is not binding precedent, except under the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.


        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
                                                                      (continued...)
      Perez-Aguirre was charged by criminal complaint with, and subsequently

indicted for, illegal reentry after deportation in violation of 8 U.S.C. § 1326.

Perez-Aguirre pled guilty to the charged offense and was sentenced to a term of

imprisonment of seventy-eight months. Following the completion of a direct

appeal unsuccessfully challenging his sentence, Perez-Aguirre, appearing pro se,

filed a § 2255 motion asserting ineffective assistance of trial counsel. The district

court denied Perez-Aguirre’s motion, but granted Perez-Aguirre a certificate of

appealability.

      “A claim of ineffective assistance of counsel presents a mixed question of

fact and law, which we review de novo.” United States v. Holder, 410 F.3d 651,

654 (10th Cir. 2005). Any underlying factual findings made by the district court

are reviewed for clear error. United States v. Blackwell, 127 F.3d 947, 955 (10th

Cir. 1997). To succeed on a claim of ineffective assistance of counsel, a

petitioner must show that counsel’s performance “fell below an objective standard

of reasonableness and that he was prejudiced thereby.” Holder, 410 F.3d at 654

(citing Strickland v. Washington, 466 U.S. 668 (1984)).

      The basis for Perez-Aguirre’s claim of ineffective assistance is that his

counsel failed to inform the district court that Perez-Aguirre wished to withdraw

his guilty plea. In support of that claim, Perez-Aguirre alleged that during his


      **
        (...continued)
therefore ordered submitted without oral argument.
                                         2
sentencing hearing he attempted, through his interpreter, to inform the district

court that he wished to withdraw his guilty plea. However, Perez-Aguirre

alleged, his interpreter was not able to finish translating his request before being

interrupted by the district court, and his trial counsel failed to inform the district

court of this fact.

       In addressing Perez-Aguirre’s claim, the district court made several

relevant factual findings. First, the district court found that Perez-Aguirre “gave

no indication to the Court or to his counsel that he desired to abort the sentencing

proceedings and withdraw his plea,” and that Perez-Aguirre indeed “expressed a

desire to proceed with the guilty plea and sentencing.” ROA, Vol. 1, Doc. 8, at 8.

The district court further found “that the sentencing proceeding went on for

several minutes after [the district court] interrupted the interpreter,” yet Perez-

Aguirre failed to tell his trial counsel “that something was wrong.” Id. Lastly,

the district court found no evidence that Perez-Aguirre “ever told his attorney that

he did not want to go through with the sentencing, even after its conclusion.” Id.

Thus, the district court concluded there was no basis for finding that Perez-

Aguirre’s counsel “was even aware that anything was amiss.” Id. Based upon

these findings, the district court concluded that trial counsel’s performance was

not deficient.

       After carefully examining the record on appeal, we agree with the district

court’s findings and conclusions. As outlined by the district court, there is simply
                                        3
no evidence to support Perez-Aguirre’s assertion that he attempted to withdraw

his guilty plea, nor is there any evidence that Perez-Aguirre’s counsel knew or

should have known that Perez-Aguirre was interested in withdrawing his plea. In

turn, there is no basis for concluding that trial counsel’s performance fell below

an objective standard of reasonableness.

      The judgment of the district court is AFFIRMED. Perez-Aguirre’s motion

to proceed on appeal in forma pauperis is DENIED.


                                               Entered for the Court


                                               Mary Beck Briscoe
                                               Circuit Judge




                                           4
