                                                                               FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                           July 30, 2012
                        UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                           Clerk of Court
                                       TENTH CIRCUIT


 UNITED STATES OF AMERICA,
                 Plaintiff–Appellee,                            No. 12-2067
           v.                                    (D.C. Nos. 1:11-CV-01052-JEC-WPL &
                                                         2:10-CR-00606-JEC-2)
 MARIO ALDO SAUCEDA,                                         (D. New Mexico)
                 Defendant–Appellant.


                ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.


       Appellant seeks a certificate of appealability to appeal the district court’s denial of

his 28 U.S.C. § 2255 habeas petition. In 2010, Appellant pled guilty to conspiracy to

possess with intent to distribute less than five grams of methamphetamine, and he was

sentenced to 188 months of imprisonment. Appellant filed an appeal, but his appeal was

dismissed pursuant to the plea agreement’s waiver of appellate rights. In his § 2255

motion, Appellant claimed he received ineffective assistance of counsel during his plea

negotiations, plea hearing, and sentencing, based mainly on the fact he received a much

longer sentence than expected. However, the magistrate judge considered each of


       *
         This order is not binding precedent except under the doctrines of law of the case,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.
Appellant’s arguments and concluded that Appellant had not shown ineffective assistance

of counsel under Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The district

court agreed and therefore denied habeas relief.

       After thoroughly reviewing the record and Appellant’s filings on appeal, we

conclude that reasonable jurists would not debate the district court’s denial of habeas

relief. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Most of Appellant’s arguments

revolve around the fact he received a longer sentence than expected. However, while the

record shows the prosecutor and defense counsel both estimated a lower sentencing

guidelines range than the 188–235 month range the PSR later calculated, Appellant was

repeatedly warned the sentencing court would not be bound by the plea agreement’s

stipulations or the parties’ estimates. He chose to plead guilty knowing his sentence

could be much higher than estimated. The record simply does not support a claim of

ineffective assistance of counsel at the plea bargaining and change of plea phases. See

United States v. Gordon, 4 F.3d 1567, 1570 (10th Cir. 1993) (“A miscalculation or

erroneous sentence estimation by defense counsel is not a constitutionally deficient

performance rising to the level of ineffective assistance of counsel.”). As for Appellant’s

claims regarding counsel’s alleged failure to raise certain objections during the sentencing

proceeding, Appellant does not show a reasonable probability he would have received a

lower sentence if counsel had raised these objections.1 Contrary to Appellant’s

       1
        Appellant also argues counsel should have requested a downward variance based
on Appellant’s low level of intelligence. This argument was raised for the first time in his
objection to the magistrate judge’s report and is thus deemed waived. See Marshall v.

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assertions, the sentencing guidelines range was correctly calculated, and the district court

was not bound by the stipulations in the plea agreement. Moreover, counsel in fact

requested a downward variance based on these stipulations, and the court’s rejection of

this request does not show ineffective assistance on counsel’s part. Appellant has not

shown either that counsel’s performance was deficient or that he was prejudiced by

counsel’s purported errors at sentencing. Therefore, for substantially the same reasons

given by the magistrate judge and district court, we DENY Appellant’s request for a

certificate of appealability and DISMISS the appeal.


                                                   ENTERED FOR THE COURT



                                                   Monroe G. McKay
                                                   Circuit Judge




Chater, 75 F.3d 1421, 1426 (10th Cir. 1996).

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