                                                                     F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                    August 14, 2006
                      UNITED STATES CO URT O F APPEALS
                                                                  Elisabeth A. Shumaker
                                   TENTH CIRCUIT                      Clerk of Court



 U N ITED STA TES O F A M ER ICA,

          Plaintiff - Appellee,
                                                        No. 05-8095
 v.                                               (D.C. No. 04-CV-129-J)
                                                  (D.C. No. 01-CR-131-J)
 ANGEL C ONTRERAS-                                       (D . W yo.)
 CA STELLA NOS,

          Defendant - Appellant.



                              OR DER AND JUDGM ENT *


Before HA RTZ, EBEL and T YM KOVICH, Circuit Judges.


      Defendant-Appellant Contreras-Castellanos appeals the district court’s

dismissal of his § 2255 motion asserting two ineffective assistance of counsel

claims. W e AFFIRM .




      *
        After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G ). The case is therefore ordered submitted without oral argument. 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
                                  BACKGROUND

      Contreras-Castellanos was indicted along with eight others on various

charges involving the distribution of controlled substances. Specifically,

Contreras-Castellanos was charged w ith: (1) one count of conspiracy to possess

with intent to distribute, and to distribute m ethamphetamine and cocaine, in

violation of 21 U.S.C. §§ 841(a), (b)(1)(A), and 846; (2) one count of distribution

and aiding and abetting in the distribution of methamphetamine, in violation of 21

U.S.C. § 841(a) and (b)(1)(B) and 18 U.S.C. § 2; and (3) one count of illegal re-

entry by a deported alien, in violation of 8 U.S.C. § 1326(a)(2). He pleaded

guilty to illegal re-entry but went to trial on the remaining two counts. Despite

his trial testimony that he was not involved in the drug trafficking activities, the

jury found him guilty on the conspiracy count. They did, however, acquit him on

the distribution count. The district court sentenced Contreras-Castellanos to 188

months on the conspiracy count and a concurrent twenty-four months on the

illegal re-entry count. On direct appeal, this court affirmed his conviction.

United States v. Contreras-Castellanos, 56 F. App’x 904 (10th Cir. 2003).

      Contreras-C astellanos later filed a motion to vacate, set aside, or correct his

sentence pursuant to 28 U.S.C. § 2255. He argued two errors in the proceedings

below, both grounded in the theory of ineffective assistance of counsel: first, that

his counsel failed to explain to him how the concept of “relevant conduct” was

applied in a conspiracy case; and second, that his counsel failed to explain how

                                         -2-
certain portions of the United States Sentencing Guidelines could have applied in

his case. The district court denied his motion, determining Contreras-Castellanos

failed to show that his counsel’s performance was constitutionally deficient and

that, even assuming he had, he did not show that he was prejudiced.

      W e granted Contreras-Castellanos’s request for a certificate of

appealability (“COA”) on both of his ineffective assistance claims.

                                  D ISC USSIO N

      W hen considering the denial of a § 2255 motion, we review the district

court’s legal rulings de novo and its factual findings for clear error. United States

v. Orange, 447 F.3d 792, 796 (10th Cir. 2006).

      A claim for ineffective assistance of counsel presents a mixed question
      of fact and law, which we review de novo. In order to establish a
      successful claim for ineffective assistance of counsel, [a defendant]
      must show (1) that counsel’s performance was deficient, and (2) that
      this deficient performance prejudiced his defense, depriving him of a
      fair trial with a reliable result.

Id. (citations omitted). Further, “[t]o prove deficient performance, [a defendant]

must show counsel’s representation fell below an objective standard of

reasonableness.” Sallahdin v. Gibson, 275 F.3d 1211, 1235 (10th Cir. 2002).

And “[t]o establish prejudice, [he] must show that, but for counsel’s errors, there

is a reasonable probability the result of the proceeding would have been

different.” Id. Finally, a defendant must establish both prongs in order to




                                        -3-
succeed on his claim; thus, “a failure to prove either one is dispositive.” Orange,

447 F.3d at 796-97.

      W e conclude that, even assuming that counsel’s performance was deficient,

Contreras-Castellanos has failed to meet his burden to establish prejudice on

either claim.

          I. Ineffective Assistance Based O n Counsel’s Failure To Explain
                      “R elevant Conduct” In A Conspiracy Case

      Contreras-Castellanos argues that his attorney advised him that, were he

found guilty of conspiracy, he would be held responsible for only the 948 grams

of drugs confiscated by the government during its drug investigation. He claims

he was never informed that he could be held accountable for the 9.27 kilograms

involved in the larger conspiracy. He further contends that, had he understood the

potential sentence he was facing, he would not have proceeded to trial.

      Even assuming that counsel’s performance was constitutionally deficient, 1

Contreras-Castellanos has failed to demonstrate prejudice. As noted, Contreras-

Castellanos argues that, had he known about the proper application of the

      1
         Both the district court and the government rely on our decision in United
States v. Gordon, 4 F.3d 1567, 1570-71 (10th Cir. 1993), to argue that counsel’s
failure to predict a client’s sentence accurately does not rise to the level of
deficient performance. However, failing to predict a sentence correctly is not the
same as failing to understand the mechanics of the sentencing guidelines (the
issue alleged here). See United States v. M cCoy, 215 F.3d 102, 108 (D.C. Cir.
2000) (“[N]ot every error made in applying the Guidelines amounts to deficient
performance . . . but . . . ‘familiarity with the structure and basic content of the
Guidelines . . . has become a necessity for counsel who seek to give effective
representation.’”) (quoting United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992)).

                                        -4-
“relevant conduct” guideline, he would have pleaded guilty and not gone to trial.

However, as the government points out, the defendant provides no evidence or

argument that the relevant conduct attributed to the defendant would have

changed based on a guilty plea. The defendant was assessed 9.27 kilograms of

methamphetamine in the PSR, meaning he fell into the drug quantity range of

“[a]t least 5 KG but less than 15 KG,” which results in a base offense level of 36.

His co-conspirators— each of whom did plead guilty— were assessed the same

base offense level. See United States v. M ontoan-Herrera, 351 F.3d 462, 463

(10th Cir. 2003); United States v. Topete-Plascencia, 351 F.3d 454, 456 (10th Cir.

2003); United States v. Jimenez-Oliva, 82 F. App’x 30, 32 (10th Cir. 2003)

(unpublished); United States v. Virgen-Chavarin, 350 F.3d 1122, 1126 (10th Cir.

2003). Thus, as there is nothing to suggest that Contreras-Castellanos would have

faced a lower base offense level had he pleaded guilty (upon a correct

understanding of the relevant conduct calculation), he has failed to meet his

burden of showing “a reasonable probability the result of the proceeding would

have been different.” Sallahdin, 275 F.3d at 1235.

      II. Ineffective Assistance Based O n Counsel’s Failure To Explain
               Sentencing G uidelines’ “Safety Valve” Reduction

      Contreras-Castellanos also argues that his counsel was ineffective for

failing to explain the so-called “safety valve” provision of the sentencing

guidelines.” If a defendant meets certain criteria, including (as relevant here)



                                        -5-
“truthfully provid[ing] to the Government all information and evidence the

defendant has concerning the offense” before the sentencing hearing, he is

entitled to a two-level reduction in his base offense level, even if the reduction

results in a sentence below the statutory mandatory minimum. 18 U.S.C. §

3553(f)(1)-(5); see also U.S.S.G. §§ 2D1.1 and 5C1.2. 2 Contreras-Castellanos

claims that, had counsel explained this provision to him, he would have “provided




      2
          Specifically, a defendant must satisfy the follow ing requirements:

      (1) the defendant does not have more than 1 criminal history point, as
      determined under the sentencing guidelines;

      (2) the defendant did not use violence or credible threats of violence or
      possess a firearm or other dangerous weapon (or induce another
      participant to do so) in connection with the offense;

      (3) the offense did not result in death or serious bodily injury to any
      person;

      (4) the defendant w as not an organizer, leader, manager, or supervisor
      of others in the offense, as determined under the sentencing guidelines
      and was not engaged in a continuing criminal enterprise, as defined in
      section 408 of the Controlled Substances Act; and

      (5) not later than the time of the sentencing hearing, the defendant has
      truthfully provided to the Government all information and evidence the
      defendant has concerning the offense or offenses that w ere part of the
      same course of conduct or of a common schem e or plan, but the fact
      that the defendant has no relevant or useful other information to provide
      or that the Government is already aware of the information shall not
      preclude a determination by the court that the defendant has complied
      with this requirement.

18 U.S.C. § 3553(f)(1)-(5).

                                          -6-
a complete and truthful disclosure as to all the facts required to meet the statutory

requirements.” 3

      Even if this counsel’s action was constitutionally deficient, Contreras-

Castellanos has not shown how he was prejudiced by the lack of opportunity to

attempt to qualify for the reduction. Contreras-C astellanos does not explain

what information he would have disclosed in order to satisfy the provision. Even

so, he would have had to disclose one of two things; either (1) that his testimony

during trial was accurate and he did not participate in or know about the drug

trafficking scheme; or (2) that he did not tell the truth during trial and he was, in

fact, involved in the conspiracy. Neither confession, per se, disqualifies him from

the reduction. See 18 U.S.C. § 3553(f)(5) (“[T]he fact that the defendant has no

relevant or useful other information to provide or that the Government is already

aware of the information shall not preclude a determination by the court that the

defendant has complied with this requirement.”); United States v. Jeffers, 329

F.3d 94, 99 (2d Cir. 2003) (noting that a defendant’s perjury does not disqualify

him from the safety valve reduction if he “comes clean” before sentencing).

However, under either approach, Contreras-Castellanos has not shown a

“reasonable probability the result of the proceeding would have been different.”

Sallahdin, 275 F.3d at 1235.



      3
       He does not argue that counsel incorrectly explained or failed to
understand the provision; only that counsel failed to make him aware of it.

                                         -7-
      Although Contreras-Castellanos claimed at trial that he was not involved in

the drug trafficking activities, the jury found Contreras-Castellanos guilty of

conspiracy; on direct appeal, we affirmed that there was sufficient evidence to

support this verdict. Contreras-Castellanos, 56 F. App’x at 906-07. In light of

this, had Contreras-Castellanos attempted to qualify for the reduction by

maintaining his innocence, there is simply no reasonable probability that the court

would have found that he had met his burden of “truthfully provid[ing] to the

Government all information and evidence the defendant has concerning the

offense.” 18 U.S.C. § 3553(f)(5); see also Virgen-Chavarin, 350 F.3d at 1129

(noting that it is the defendant’s burden to prove, by a preponderance, that he has

satisfied each criterion).

      If, on the other hand, Contreras-Castellanos attempted to qualify for the

safety valve reduction by admitting that he was involved in the conspiracy, he

would have exposed himself to a two-level sentencing enhancement for

obstruction of justice. U.S.S.G. § 3C1.1. W e have no reason to think that such

an enhancement would not have been sought and applied. See Jeffers, 329 F.3d at

99 (noting that where a defendant perjures himself at trial but then “comes clean”

before sentencing, he is not disqualified from the safety valve reduction but his

“perjury is accounted for in the enhancement for obstruction of justice under

U.S.S.G. § 3C1.1.”). Thus, even if Contreras-Castellanos received the two-point

reduction under the safety valve, there is no reasonable probability that he would

                                         -8-
not have also received a two-point enhancement for obstruction.

      In short, as we cannot conclude that Contreras-Castellanos would have

faced a lower sentence under either scenario, he has not met his burden to show

that counsel’s failure to inform him of the safety valve provision, even if

deficient, caused him prejudice.

                                   C ON CLU SIO N

      For the foregoing reasons, we AFFIRM the district court’s denial of

Contreras-Castellanos’s § 2255 motion. 4



                                       ENTERED FOR THE COURT



                                       David M . Ebel
                                       Circuit Judge




      4
        Contreras-Castellanos also contends that the district court should have
held an evidentiary hearing to properly evaluate his § 2255 motion. The district
court found that the record “conclusively illustrate[d]” that Contreras-Castellanos
was not entitled to relief, and therefore declined to hold an evidentiary hearing.
Contreras-C astellanos’s only argument on appeal is that such a hearing would
have clarified whether he was acting on his counsel’s advice by pleading not
guilty and maintaining his innocence throughout trial. However, this issue is not
relevant to our disposition of the case. W e therefore agree with the district court
that no hearing was necessary, as the record “conclusively show[s] that the
prisoner is entitled to no relief.” United States v. Kennedy, 225 F.3d 1187, 1193
(10th Cir. 2000).

                                         -9-
