                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                   UNITED STATES COURT OF APPEALS September 10, 2008
                                                                Elisabeth A. Shumaker
                               TENTH CIRCUIT                        Clerk of Court




 WOODY MICHAEL RIPPETOE,

             Petitioner-Appellant,                      No. 08-7052
 v.                                            Eastern District of Oklahoma
 UNITED STATES OF AMERICA,                     (D.C. No. 08-CV-041-RAW)
                                               (D.C. No. CR-06-039-RAW)
             Respondent-Appellee.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before TACHA, KELLY and McCONNELL, Circuit Judges.


      Woody Michael Rippetoe, a federal prisoner proceeding pro se, seeks a

certificate of appealability (COA) that would allow him to appeal from the district

court’s order denying his habeas corpus petition under 28 U.S.C. § 2255. See 28

U.S.C. § 2253(c)(1)(B). Because we conclude that Mr. Rippetoe has failed to

make “a substantial showing of the denial of a constitutional right,” we deny his

request for a COA and dismiss the appeal. 28 U.S.C. § 2253(c)(2).




      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
                                   Background

      On July 12, 2006, Woody Michael Rippetoe was charged with Conspiracy

to Possess with Intent to Distribute and Distribute Methamphetamine and

Marijuana (21 U.S.C. §§ 846), Possession with Intent to Distribute and

Distribution of Methamphetamine (21 U.S.C. §§ 841(a)(1)), Conspiracy to

Launder Money (18 U.S.C. §§ 1956(h), 1956(a)(1)(B), 1957(a) & (b)2, and 31

U.S.C. §§ 5324(a)(3) & (b)(3)), two counts of Engaging in Monetary Transactions

in Property Derived From Specified Unlawful Activity (18 U.S.C. §§ 1957), Use

of Communication Facility in Causing or Facilitating the Commission of Felonies

Under the Controlled Substances Act (21 U.S.C. § 843(b)), Felon in Possession of

Firearm (18 U.S.C. § 922(g)(1)), and Drug Forfeiture (21 U.S.C. § 853). R. Doc.

17. Mr. Rippetoe pled guilty in a written plea agreement to the money

laundering conspiracy (count three), and to both counts of Engaging in Monetary

Transactions in Property Derived From Specified Unlawful Activity (counts four

and five). R. Doc. 2, Exh. A at 1-2 (Plea Agreement). The government agreed to

dismiss the remaining counts of the indictment. Id. at ¶7.

      The plea agreement included a clause stating that if the government

believed the defendant had provided “substantial assistance” under 18 U.S.C. §

3353, it could “in its discretion request the Court to depart below the guideline

range” when fixing Mr. Rippetoe’s sentence or “within one year after sentencing .




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. . move the Court to order relief pursuant to Rule 35, Rules of Criminal

Procedure.” Id. at ¶11.

      Mr. Rippetoe in exchange waived his right to appeal his sentence. Id. at

¶31. The plea agreement read in relevant part that: “Defendant expressly waives

the right to appeal defendant’s sentence on any ground, except to challenge an

upward departure from the applicable guideline range, or an adverse ruling on any

contested sentencing issue. . . . [D]efendant . . . agrees not to contest such

sentence in any post conviction proceeding . . . .” Id. In agreeing to plead guilty,

Mr. Rippetoe acknowledged that he “fully” understood the plea agreement,

“voluntarily agree[d] to it without reservation” and was “satisfied with the legal

services provided by [his] attorney in connection with [the] agreement.” Id. at p.

19.

      On January 30, 2007, the defendant was sentenced to 240 months in prison

on count three, and 120 months each for counts four and five. R. Doc. 2, Exh. B

at 9-11. Twenty-two months of the term for count four were to run consecutively

to the term for count three. The remaining ninety-eight months of count four and

the entire 120 month sentence imposed on count five were to be served

concurrently with count three. The resultant total sentence was 262 months. Id.

      Mr. Rippetoe filed a motion with the district court to vacate, set aside, or

correct his sentence under 28 U.S.C. § 2255. R. Doc. 1. He claimed that the

government had breached the plea agreement by not filing a Rule 35 motion

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within a year after his sentencing. R. Doc. 2 at 1-5. He further maintained that

his sentence was in excess of that warranted under the sentencing guidelines, and

that he had ineffective assistance of counsel. Id. at 8–9. The government filed a

motion to enforce the plea agreement. R. Doc. 7. On May 5, 2008, the district

court granted the government’s motion. The defendant appeals. The district

court granted his motion to proceed in forma pauperis, rendering it unnecessary

for us to rule on his motion for IFP status in this Court.

                                      Discussion

      The denial of a motion for relief under 28 U.S.C. § 2255 may be appealed

only if the district court or this Court first issues a COA. 28 U.S.C. §

2253(c)(1)(B). A COA will issue “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To

make such a showing, a petitioner must demonstrate that “reasonable jurists could

debate whether . . . the petition should have been resolved in a different manner

or that the issues presented were adequate to deserve encouragement to proceed

further.” Slack v. McDaniel, 529 U.S. 473, 483–84 (2000) (internal quotation

marks omitted).

      The district court held that the government had not breached its plea

agreement because the agreement gave the government only the option of filing a

Rule 35 motion and so “the decision not to file a motion in that circumstance is

not a breach of the plea agreement.” R. Doc. 9 at 1. Mr. Rippetoe contends that

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the government has failed to live up to its side of the agreement, and to enforce

the waiver agreement would affect the “fairness, integrity, or public reputation of

judicial proceedings.” See United States v. Porter, 405 F.3d 1142, 1143 (10th

Cir. 2005).

      We see no reasonable basis to dispute the district court’s conclusion.

Under the express terms of the plea agreement, the government was given the

discretion to move the court to order relief if it believed that Mr. Rippetoe had

provided “substantial assistance.” Plea Agreement, ¶11. The Government was

not required to make a Rule 35 motion; indeed, it was not required to make such a

motion even if the assistance Mr. Rippetoe gave was “substantial.” With such

discretion vested in the government, there was no breach when it declined to

move the court for relief under Rule 35. See United States v. Forney, 9 F.3d

1492, 1499–1501 (11th Cir. 1993). And Mr. Rippetoe has failed to show that the

government’s decision not to file a Rule 35 motion was based on an

unconstitutional motive.

      We also reject Mr. Rippetoe’s claim that his sentence exceeded the

statutory maximum. See Porter, 405 F.3d at 1143 (waiver will not be enforced if

the result is a miscarriage of justice because “the sentence exceeds the statutory

maximum”). Mr. Rippetoe seems to believe that the maximum penalty he could

have received was twenty years, or 240 months. But that is the maximum for

only one of the counts to which Mr. Rippetoe pled guilty (Conspiracy to Launder

                                         -5-
Money). The combined maximum for all three of the counts to which he pled

guilty was forty years in prison, as was acknowledged in the plea agreement. Plea

Agreement, ¶3. Mr. Rippetoe’s sentence of 262 months did not exceed the

statutory maximum.

      Mr. Rippetoe also contends that he received ineffective assistance of

counsel, but his allegation of inefficacy relates to his beliefs that his sentence was

excessive and that the government did not honor the plea agreement. Since we

see no merit in those underlying claims, counsel was not deficient in his

representation of Mr. Rippetoe. See United States v. Snyder, 787 F.2d 1429, 1431

(10th Cir. 1986).

                                     Conclusion

      Accordingly, we DENY Mr. Rippetoe’s request for a COA and DISMISS

this appeal.

                                                     Entered for the Court,

                                                     Michael W. McConnell
                                                     Circuit Judge




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