                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           DEC 21 1999
                                    TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 BRETT L. CANDELARIA,

           Petitioner-Appellant,
 v.                                                       No. 99-2040
 TIM LEMASTER, Warden; and                         (D.C. No. CIV-97-416-BB)
 ATTORNEY GENERAL FOR THE                                  (D.N.M.)
 STATE OF NEW MEXICO,

           Respondents-Appellees.


                             ORDER AND JUDGMENT           *




Before SEYMOUR, Chief Judge, TACHA , and BRISCOE, 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.

       Asserting that his attorney provided ineffective assistance by coercing him

into a plea agreement, Brett L. Candelaria filed a petition pursuant to 28 U.S.C.


       This order and judgment is not binding precedent, except under the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.
§ 2254 seeking a writ of habeas corpus. The district court dismissed Candelaria’s

petition, concluding that Candelaria’s decision to accept the plea was knowing

and voluntary. We previously granted a certificate of appealability and now

affirm.

                                             I.

       In 1993, Candelaria was charged in state court with five counts of criminal

sexual misconduct. He was represented by court-appointed counsel, Scott Curtis,

from the time the charges were filed until he entered a plea and was sentenced.

Three of the five counts charged Candelaria with criminal sexual penetration of a

minor, a first degree felony punishable by a prison term of up to 18 years. The

remaining two counts charged Candelaria with criminal sexual contact with a

minor, a third degree felony punishable by a prison term of up to three years. As

a result, Candelaria faced the possibility of a 60-year sentence. After the

preliminary hearing, at which at least one of the alleged victims testified,   1
                                                                                   and

after several discussions with his counsel, Candelaria agreed to plead no contest

to four counts of criminal sexual contact with a minor. Candelaria’s maximum

prison sentence (without enhancement) under the proposed plea agreement was

12 years.


       1
        According to the government, three victims testified at the preliminary
hearing. See Appellee’s Answer Brief at 23. Neither party to this appeal
submitted a copy of the transcript of the preliminary hearing.

                                              2
       On March 30, 1994, New Mexico district judge Ben Eastburn accepted

Candelaria’s plea. In response to questions posed by Judge Eastburn at the plea

hearing, Candelaria indicated that he had discussed the case with his attorney and

was aware of the rights he would give up by entering the plea. The judge

explained that Candelaria’s maximum prison sentence under the agreement was

twelve years, with the possibility of four additional years if the court enhanced

the sentence. Candelaria confirmed that he signed the plea and that he read and

understood the accompanying disposition agreement. He also stated that he had

not been promised any benefits beyond those spelled out in the agreement.    See

Audiocassette Transcript dated 3/30/94 at counter nos. 40-52, 60-75, 87-100,

131-43. After the prosecution described the evidence it intended to present at

trial, Candelaria stated that he understood the charges and pleaded no contest.

Id. at counter nos. 223-29. Judge Eastburn accepted the plea after concluding

that Candelaria’s plea was knowing and voluntary, and that there was a factual

basis for the plea.   Id. at counter nos. 229-35.

       On May 3, 1994, Candelaria filed a motion to withdraw his plea.

Candelaria argued in the motion that his plea was coerced and based on

misinformation supplied by Curtis. On July 15, 1994, New Mexico district judge

Paul Onuska held an evidentiary hearing to assess the merits of Candelaria’s

motion. Three witnesses testified at the hearing: Judge Eastburn, Curtis, and


                                            3
Candelaria. Judge Eastburn testified that he was “very satisfied” that Candelaria

understood the plea agreement and agreed to it voluntarily. Transcript Dated

7/15/94, part 1 (“Tr. 1”), at 4-5. The judge indicated that if he had “thought it

wasn’t voluntary or it wasn’t understood or there weren’t facts to support it,” he

“wouldn’t have taken the plea.”    Id. at 6; see also id. (expressing the view that

Candelaria’s plea was “fully understood, fully voluntary”).

      Curtis’ testimony at the hearing, although somewhat inconsistent, tended to

support Candelaria. Curtis stated that he met with Candelaria four or five times

to discuss the plea, and described the meetings as follows:

      [Candelaria] was always adamant that he had done nothing wrong
      and that he had not committed the act with which he was charged.
      He never wavered from that, from that position[.] [T]o say that I
      was zealous in advocating that he take this plea is probably an
      understatement. I was, I think I characterized it in our motion, as
      extremely overbearing and . . . in retrospect I believe that was
      accurate. I thought the deal he was being offered under the
      circumstances and under the facts was an extremely good deal. And
      . . . I was extremely pushy to get him to take it. Cause I felt it was
      in his best interest. So . . . our meetings were highly charged. And I
      was [an] extremely zealous advocate during those meetings.

Id. at 12. Curtis similarly testified that he had “dealt with a lot of criminal

defendants over the years” and that he was “as zealous and as overbearing and as

pushy with regard to this plea” as he had been with any other defendant.     Id. at




                                            4
16. Curtis was concerned that his “aggressive advocacy” and Candelaria’s youth         2



left Candelaria “in a position where he probably did something he didn’t want to

do.” Id. ; see also Transcript Dated 7/15/94, part 2 (“Tr. 2”), at 6 (communicating

Curtis’ belief that Candelaria seemed “defeated” and “resigned” when answering

Judge Eastburn’s questions at the plea hearing).

       Curtis also worried that “there may not have been a meeting of the minds”

when he and Candelaria discussed various types of pleas. Tr. 1 at 13. Curtis

recalled that after he explained guilty, no contest, and    Alford 3 pleas, he “made

the decision basically without . . . asking [Candelaria] if he approved or

disapproved of it and gave him plea paperwork that said no contest without . . .

any discussion.”    Id. at 13, 14; see also id. at 14 (expressing Curtis’ view that

only a no contest plea would permit Candelaria to “take the position that [he]

didn’t do anything wrong” while avoiding civil liability). According to Curtis,

Candelaria “understood that it was a no contest plea when he entered it,” but

“probably didn’t recognize the distinction between no contest and       Alford .” Id. at

14. Curtis further recalled that after the plea hearing Candelaria indicated that he

thought he had entered an     Alford plea. Id. at 13, 16.


       2
        Candelaria was 22 years old. He could read and write, but did not attend
school beyond the tenth grade. Transcript Dated 7/15/94, part 2, at 8-9.
       3
         The parties’ references to Alford pleas are based on North Carolina v.
Alford , 400 U.S. 25 (1970). The Alford decision is discussed infra at 14-15.

                                              5
       That said, Curtis went on to testify that he believed Candelaria’s plea may

have been voluntary. Curtis emphasized that he

       didn’t physically threaten [Candelaria] or twist his arm or put any
       kind of pressure on him other than to continue to remind him that the
       facts were difficult against him. That defenses against the charges
       were difficult. That he was in a bad position. I continually
       reminded him of the fact that he was in a bad position. . . . [W]hen I
       talk about the zealous aggressive attitude that I approach[ed] his plea
       with[,] I wasn’t getting into his face and backing him into corners or
       being physical. I was just extremely zealous in talking [to] him
       about the difficulties of winning the case at trial and the fact that the
       trade off was [a] tremendous disadvantage to him if he went to trial
       and lost. Obviously he’s looking at an awful long time in jail [as]
       opposed to the deal that we made.

Id. at 17; see also id. at 16 (indicating that Curtis never threatened Candelaria).

Curtis stated that the goal was to ensure Candelaria understood that

       his entire position was that these victims, or alleged victims[,] were
       lying. I continued to advocate the position that it would be
       impossible in my mind to convince a jury that three victims of this
       age would conspire to lie and send a man to prison. . . . I’d keep
       pointing out to him that the strengths of the State’s case . . . far
       outweighed . . . his position that he simply didn’t do this.

Tr. 2 at 5. In Curtis’ view, Candelaria gave “every appearance of understanding”

the difficulties posed by the State’s evidence.   Id. at 6; see also id. at 3 (stating

that Candelaria seemed to understand what his options were).

       Candelaria’s testimony at the hearing before Judge Onuska was similarly

inconsistent, but again suggested that Candelaria felt pressured by Curtis.

Candelaria stated that he “want[ed] to go to trial” and that he informed Curtis of


                                             6
his wishes. Id. at 10. Candelaria recalled that he and his mother met with Curtis

on the morning of the plea hearing, and described the meeting as follows:

       [Curtis] told me that I was crazy if I didn’t take it. That I should go
       ahead and take the plea and I told him I didn’t want to. I said I told
       you . . . I didn’t want to and he goes, well you’d say yes and then
       you say no. I said, well I say yes because you sit there and hound me
       till I do. . . . What I decided was that I didn’t want to take it.
       [Curtis] just threw the papers on the counter. Said we’ve talked
       about it. You know we need to decide here what we’re going to do
       here. He said, I’ve told you and that’s when he proceeded to tell me
       everything again. And then my mom and him kinda got into an
       argument and it just irritated the heck out of me. So I just threw, I
       just threatened to sign the papers and said here I’ll just sign the f-ing
       papers and I passed them over to [Curtis]. You know hastily across
       the table.

Id. at 11. 4 Candelaria reiterated that he felt “pressured by [his] attorney,” did not

agree to the plea of his own free will, and would not have agreed to enter the plea

if Curtis had not strongly urged him to do so.       Id. at 14, 13. Candelaria also

stated that he believed he was entering an       Alford plea when he appeared before

Judge Eastburn.     Id. at 15.

       Other parts of Candelaria’s testimony were more equivocal. For example,

Candelaria also testified that he signed the plea agreement because he “was just

tired of messing with all of it.”   Id. at 12. Candelaria explained:


       4
         Curtis also testified about this meeting. Curtis believed that Candelaria
appeared “undecided about what he wanted to do” on the morning of the plea
hearing. Tr. 1 at 13. During the argument between Curtis and Candelaria’s
mother, Candelaria “finally threw his hands up in the air” and stated that he “just
wanted to get it over with” by entering the plea.  Id.

                                             7
       Just all of this, I mean I’ve lost jobs over this, because people call
       my job and tell them what’s going on. And so they find an excuse to
       let me go. And this has gone on for so long. I lost a lot of friends
       over it. I’ve had some friends stick by me and I just figured you
       know . . . I just kinda in my head just gave up. I just got tired of
       messing with it. My mom and the attorney are arguing. I don’t like
       to contradict [Curtis] cause he’s an elder. So I just signed it.

Id. ; accord id. at 14. When asked whether anyone forced him to sign the

document, Candelaria responded that “as far as pressure, I would say yes, it was

more of a peer pressure.”   Id. at 13. Candelaria also agreed that Curtis

thoroughly explained his options, that he understood what Curtis told him, and

that he did not have difficulty understanding the proceedings before Judge

Eastburn. Id. at 16-17. A prosecutor concluded his cross-examination of

Candelaria with the following question:

                Mr. Devore: Now when Judge Eastburn asked you a litany of
       questions and one of the questions was, was this plea voluntary?
       . . . . And you told him that it was. Were you telling the truth that
       day?

             Mr. Candelaria: I feel that I was. I mean to what I felt
       voluntary was[,] talking about voluntary today. Maybe I wasn’t.
       The way I felt that day, I guess yeah I did.

Id. at 21.

       Judge Onuska denied Candelaria’s motion to withdraw his plea, concluding

the plea was indeed voluntary.   Id. at 24. Candelaria was sentenced to 12 years

imprisonment with all but four years of the sentence suspended.    See Transcript

dated 11/29/94 (“Tr. 3”), at 25. Before he announced Candelaria’s sentence,

                                           8
Judge Onuska stated on the record:

       Mr. Candelaria, no matter what I decide here, I want to say a few
       things first of all. It is clear for me you are extremely articulate,
       forceful and convincing. And I will not raise it to the level of con-
       man. But I will say that you know how to turn a phrase very well.
       And that’s to your credit. And the way I believe, and that’s why I
       felt that before and why I still believe . . . [n]obody talked you in[to]
       admitting your guilt in this thing, allowing a guilty plea to come into
       this thing. You[’re] a lot too forceful and a lot to[o] knowledgeable
       to have anybody do that to you.

Id. at 24.

       After exhausting his state court remedies, in 1997 Candelaria filed a

petition for a writ of habeas corpus in federal court. Candelaria asserted in the

petition that he was “coerced and intimidated” into accepting the plea, that he did

not understand the terms of the plea, and that the plea was a product of Curtis’

failure to adequately investigate the charges. Record on Appeal (“ROA”), Doc.

1, at 2. The district court, adopting the recommendations of a magistrate judge,

rejected Candelaria’s claims and dismissed the petition.    See Appellant’s Brief-

In-Chief, Attach. A-B.

                                           II.

       Our review of the denial of a habeas corpus petition is governed by 28

U.S.C. § 2254. When a state court has adjudicated the merits of the petitioner’s

claim for relief, the writ cannot be granted unless the adjudication resulted in a

decision that was (1) “contrary to, or involved an unreasonable interpretation of,


                                            9
clearly established Federal law, as determined by the Supreme Court,” or (2)

“based on an unreasonable determination of the facts in light of the evidence

presented” in the state court proceeding. 28 U.S.C. § 2254(d)(1)-(2). In these

circumstances we presume that the factual findings of the state court are correct

unless the petitioner can rebut this presumption with clear and convincing

evidence. 28 U.S.C. § 2254(e)(1);      Smallwood v. Gibson , 191 F.3d 1257, 1264-

65 (10th Cir. 1999).   4
                           Applying these standards to the case at hand, we conclude

that the state courts, in denying relief to Candelaria, did not render any decisions

that were contrary to, or involved an unreasonable interpretation of, clearly

established Federal law.

      Candelaria principally contends that he is entitled to relief because he

received ineffective assistance of counsel. To prevail on such a claim, a

defendant must satisfy the well-worn requirements of       Strickland v. Washington ,

466 U.S. 668 (1984). First, the defendant must show that his counsel’s

representation “fell below an objective standard of reasonableness.”      Id. at 688.

To do so, the defendant must overcome the “strong presumption” that “counsel’s


      4
         When a state court has not adjudicated the merits of the petitioner’s
claim for relief, “this court reviews the district court’s conclusions of law de
novo and factual findings, if any, for clear error.”   Wallace v. Ward , 191 F.3d
1235, 1241 (10th Cir. 1999). However, if the district court’s factual findings are
based exclusively on the state court record, “we do not give them the benefit of
the clearly erroneous standard but instead conduct an independent review.”
Smallwood , 191 F.3d at 1264 n.1 (citation omitted    ).

                                            10
conduct falls within the wide range of reasonable professional assistance” and

that “the challenged action might be considered sound trial strategy.”     Id. at 689

(citation and internal quotation marks omitted);    see also id. (“Judicial scrutiny of

counsel’s performance must be highly deferential.”). Second, the defendant must

show that his counsel’s deficient performance prejudiced the defense.          Id. at 687,

691-92; see also id. at 694 (stating that a defendant must prove that “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different”). When a plea agreement is at issue,

to show prejudice the defendant must demonstrate 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).

      Candelaria cannot establish a necessary predicate for his ineffective

assistance of counsel claim – that his plea was, in fact, coerced by his attorney.

“The longstanding test for determining the validity of a guilty plea is whether the

plea represents a voluntary and intelligent choice among the alternative courses

of action open to the defendant.”    Id. at 56 (citation and internal quotation marks

omitted); accord United States v. Carr , 80 F.3d 413, 416 (10th Cir. 1996);

Osborn v. Shillinger , 997 F.2d 1324, 1327 (10th Cir. 1993). As a corollary, we

will “uphold a state court guilty plea on federal review if the circumstances

demonstrate that the defendant understood the nature and the consequences of the


                                            11
charges against him and that the defendant voluntarily chose to plead guilty.”

Miles v. Dorsey , 61 F.3d 1459, 1466 (10th Cir. 1995) (citing         Boykin v. Alabama ,

395 U.S. 238, 242-44 (1969)). Whether a defendant involuntarily entered a plea

based on ineffective assistance of counsel is “a mixed question of law and fact

that we review de novo.”     Carr , 80 F.3d at 417. To the extent that this question

“depends on findings of fact made by the state court on habeas review,” however,

“these findings, with specified exceptions, carry a presumption of correctness.”

Cunningham v. Diesslin , 92 F.3d 1054, 1060 (10th Cir. 1996).

       The evidence developed in state court demonstrates that Candelaria

understood the nature of the charges against him and voluntarily entered a plea.

Candelaria testified without contradiction that he understood his “options” (i.e.,

going to trial or entering a plea of some sort), as well as the strengths of the

prosecution’s case and the weaknesses of his own case. He also testified that he

understood the proceedings before Judge Eastburn. During those proceedings,

Candelaria indicated on the record that he understood the factual basis for the

charges, the rights he would forfeit by entering a plea, and the possibility that he

would receive a prison sentence of up to 16 years. These solemn declarations in

open court “carry a strong presumption of verity” and thus “constitute a

formidable barrier” to Candelaria’s petition for collateral relief.      Blackledge v.

Allison , 431 U.S. 63, 74 (1977);    accord Lasiter v. Thomas , 89 F.3d 699, 702


                                              12
(10th Cir. 1996); Laycock v. New Mexico , 880 F.2d 1184, 1186-87 (10th Cir.

1989). Moreover, two New Mexico trial judges, after observing Candelaria’s

behavior and listening to his comments in the courtroom, concluded that

Candelaria knowingly and voluntarily pleaded no contest. To the extent these

conclusions encompass findings of historical fact, they are presumptively correct.

See 28 U.S.C. § 2254(e)(1). This uncontroverted or presumptively correct

evidence overshadows Candelaria’s inconsistent testimony as to whether his plea

was voluntary. Compare Tr. 2 at 13, 14 (stating that Candelaria was pressured by

Curtis and did not accept the plea of his own free will),     with id. at 12-14 (stating

that Candelaria accepted the plea because of “peer pressure” and because he was

tired of “messing with” the loss of jobs and friends),      and id. at 21 (stating that

Candelaria felt the plea was voluntary when it was entered).

       Curtis’ testimony is insufficient to show that Candelaria was coerced into

pleading no contest. Curtis’ concern that he may have induced Candelaria to

“d[o] something he didn’t want to do”      ignores the fact that a defendant cannot

seek refuge in the Sixth Amendment simply because his attorney “vigorously

urges” him to accept a plea agreement that appears to be in his best interest.       See

Miles , 61 F.3d at 1470 (quoting    Williams v. Chrans , 945 F.2d 926, 933 (7th Cir.

1991) for the proposition that “even strong urging by counsel does not invalidate

a guilty plea”) (additional citation and internal quotation marks omitted);       see also


                                             13
Carr , 80 F.3d at 417 (rejecting a claim of coercion even though an attorney

castigated his client for resisting a plea agreement by calling him “stupid” and “a

f***ing idiot”). Similarly, proof of “time pressure, stress, mental anguish, and

depression” experienced in plea discussions does not establish that a defendant’s

plea was involuntary.    Miles , 61 F.3d at 1470. Although Curtis believed in

retrospect that he might have been “overbearing,” his testimony reveals that he

did nothing more than zealously encourage Candelaria to accept an agreement

that eliminated the possibility of a 60-year prison sentence – a sentence that was

not inconceivable given the evidence the prosecution would have presented at

trial. Candelaria, not Curtis, was the final arbiter of whether the case would go

to trial. Cf. Carr , 80 F.3d at 417 (commenting that even when outside pressures

are “palpable” to a defendant, they “do not vitiate the voluntariness of his plea; it

[is] still his choice to make”).

       Candelaria’s argument that he acted involuntarily because he believed he

was entering an Alford plea is unpersuasive.        North Carolina v. Alford , 400 U.S.

25 (1970), holds that “an express admission of guilt” is “not a constitutional

requisite to the imposition of criminal penalty.”      Id. at 37; see also United States

v. Maez , 915 F.2d 1466, 1468 (10th Cir. 1990) (“Under        Alford , a defendant may

enter a plea of guilty to a charged offense, although he does not admit that he

committed the charged offense.”). The unstated premise of Candelaria’s


                                             14
argument is that there was a meaningful difference between an      Alford plea and a

no contest plea in his case. This is incorrect. Candelaria knew that a no contest

plea and an Alford plea were “basically the same thing,”     see Tr. 2, at 15, entered

the former in light of the evidence prosecutors had assembled against him, and

did not expressly admit that he committed the charged acts during the plea

hearing. The Alford Court itself explained that there is no material difference

between “a plea that refuses to admit commission of the criminal act and a plea

containing a protestation of innocence when . . . a defendant intelligently

concludes that his interests require entry of a guilty plea and the record before the

judge contains strong evidence of actual guilt.” 400 U.S. at 37;    see also id.

(noting that the denomination of “guilty” rather than “nolo contendere” is

insignificant in some circumstances because “the Constitution is concerned with

the practical consequences, not the formal categorizations, of state law”).

      Equally unavailing is Candelaria’s argument that Curtis provided

ineffective assistance by failing to conduct an adequate investigation. Once

more, Strickland provides the relevant legal framework:

      [S]trategic choices made after thorough investigation of law and
      facts relevant to plausible options are virtually unchallengeable; and
      strategic choices made after less than complete investigation are
      reasonable precisely to the extent that reasonable professional
      judgments support the limitations on investigation. In other words,
      counsel has a duty to make reasonable investigations or to make a
      reasonable decision that makes particular investigations unnecessary.
      In any ineffectiveness case, a particular decision not to investigate

                                           15
      must be directly assessed for reasonableness in all the circumstances,
      applying a heavy measure of deference to counsel’s judgments.

466 U.S. at 690-91; accord Miles , 61 F.3d at 1475; Romero v. Tansy , 46 F.3d

1024, 1029 (10th Cir. 1995). In the case at hand, Curtis evaluated the

government’s evidence and Candelaria’s potential defenses using police reports

and information gleaned from the preliminary hearing.          He also met four or five

times with Candelaria to discuss the case.        Nothing in the record suggests that

Curtis’ decision to rely exclusively on this information was unreasonable under

the circumstances. This alone is fatal to Candelaria’s argument.        Cf. United

States v. Estrada , 849 F.2d 1304, 1307 (10th Cir. 1988) (finding that an

attorney’s decision “not to make a more extensive investigation” was reasonable

because the limited information possessed by the attorney was “sufficient to

determine the necessary breadth of the investigation”). Additionally, Candelaria

has not even attempted to identify an important witness or a potential defense

that was overlooked by Curtis. This, too, supports the denial of Candelaria’s

petition. Pre-AEDPA decisions applying a less deferential standard of review

demonstrate that an ineffective assistance claim must fail when the petitioner

cannot identify the evidence that should have been discovered or how such

evidence would have affected the outcome of his case.         See Hatch v. Oklahoma ,

58 F.3d 1447, 1457 (10th Cir. 1995) (rejecting an ineffective assistance claim

because the petitioner did not state “what exculpatory evidence an adequate

                                             16
investigation would have discovered or how this evidence would have affected

the outcome” of a particular phase of trial);        Moore v. Reynolds , 153 F.3d 1086,

1098 (10th Cir. 1998) (rejecting a similar claim because the petitioner conceded

he “lack[ed] factual back-up” to show what might have been discovered if his

counsel had conducted a guilt-phase investigation),         cert. denied , 119 S. Ct. 1266

(1999).

       Candelaria’s final argument – that he received ineffective assistance

because Curtis failed to advise him of the possibility of an enhanced sentence –

fares no better. Curtis acknowledged that he did not discuss with Candelaria the

possibility that his sentence could be increased by four years based on

aggravating circumstances.      Curtis stated that he only discussed a 12-year

sentence because he did not believe the prosecution could show that aggravating

circumstances required an enhanced penalty.           See Tr. 1 at 15-16. It is true that a

plea may be involuntary if an attorney “materially misinforms the defendant of

the consequences of the plea or the court’s probable disposition.”          Laycock , 880

F.2d at 1186; accord Carr , 80 F.3d at 418. Here, however, Curtis’ prediction of a

12-year sentence was accurate.      See Tr. 3 at 25 (reflecting that Judge Onuska

rejected the prosecution’s attempt to increase Candelaria’s sentence to 16 years).

In any case, “[a] miscalculation or erroneous sentence estimation by defense

counsel is not a constitutionally deficient performance rising to the level of


                                                17
ineffective assistance of counsel.”     United States v. Gordon , 4 F.3d 1567, 1570

(10th Cir. 1993); accord Lasiter , 89 F.3d at 703. Further, Judge Eastburn

informed Candelaria of the possibility of a 16-year sentence      before Candelaria

agreed to plead no contest. Candelaria’s bald assertion that he would have gone

to trial if Curtis had mentioned a four-year enhancement prior to the plea hearing

is insufficient to sustain an ineffective assistance claim.    Cf. Gordon , 4 F.3d at

1571 (holding that a defendant cannot show prejudice by making the “mere

allegation” that “but for [his] counsel’s failure to inform him about the use of

relevant conduct in sentencing, he would have insisted on going to trial”).

       The judgment of the district court is AFFIRMED.

                                                   Entered for the Court

                                                   Mary Beck Briscoe
                                                   Circuit Judge




                                              18
