                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 December 15, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-50410



UNITED STATES OF AMERICA

                      Plaintiff - Appellee

     v.

TIMOTHY DONNELL ROBINSON

                      Defendant - Appellant



          Appeal from the United States District Court
             for the Western District of Texas, Waco


Before KING, Chief Judge, and HIGGINBOTHAM and DAVIS, Circuit
Judges.

PER CURIAM:*

     Defendant-Appellant Timothy Donnell Robinson seeks a

certificate of appealability to appeal the district court’s

dismissal of his 28 U.S.C. § 2255 motion to vacate, set aside, or

correct his federal prison sentence.   For the following reasons,

we DENY Robinson a certificate of appealability on his claims of

breach of plea agreement and ineffective assistance of counsel.

               I.   FACTUAL AND PROCEDURAL BACKGROUND


     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                 -1-
     On January 16, 2003, Robinson entered into a plea agreement

by which he pled guilty to one count of “knowingly and unlawfully

possessing a firearm [on December 7, 2000] that had moved in

interstate commerce while being a person who had been convicted

of a crime punishable by imprisonment for a term exceeding one

year in violation of [18 U.S.C. §§] 922(g)(1) and 924(a)(2).”

     In exchange for Robinson’s plea, the government agreed in

the plea agreement to refrain from prosecuting him for other

violations of Title 18 of which the United States was then aware

that he may have committed in the Western District of Texas.    The

plea agreement stated that Robinson was “aware that his sentence

will be imposed in conformity with the Federal Sentencing

Guidelines and Policy Statements, which may be up to the maximum

allowed by statute” for his offense.   In addition, the agreement

provided that Robinson “voluntarily and knowingly waive[d] his

right to appeal his sentence on any ground . . . ; provided,

however, that this waiver does not extend to his right to appeal

any upward departure pursuant to U.S.S.G. § 5K2.0 from the

Guideline range found by the district court.”   Pursuant to the

plea agreement, Robinson also:

     knowingly and voluntarily waive[d] his right to contest
     his sentence in any post-conviction proceeding,
     including but not limited to, a proceeding pursuant to
     28 U.S.C. § 2255; provided, however, . . . consistent
     with principles of professional responsibility imposed
     on [Robinson’s] counsel and counsel for the Government,
     [Robinson did] not waive his right to challenge his
     sentence to the extent that it is the result of a
     violation of his constitutional rights based on claims

                                 -2-
     of ineffective assistance of counsel or prosecutorial
     misconduct of constitutional dimension.

Finally, the plea agreement stated that Robinson “waive[d] his

rights to challenge the sentence imposed, knowing that the Court

has not yet determined his sentence” and knowing “that he cannot

challenge the sentence imposed . . . even if it differ[ed]

substantially from any sentencing range estimated by his

attorney, the attorney for the Government, or the Probation

Officer.”

     On the same day that Robinson entered into the plea

agreement, he appeared before the district court for

rearraignment, where he was represented by counsel.    During those

proceedings, the district judge explained to Robinson that he was

charged with one count of possessing a firearm in violation of 18

U.S.C. §§ 922(g)(1) and 924(a)(2).    The district judge further

explained that “[t]he maximum punishment for that offense is ten

years of incarceration followed by three years of supervised

release, a fine of up to a quarter of a million dollars and a

$100 mandatory assessment under the Victims of Crime Act.”     See

18 U.S.C. § 924(a)(2) (2000).   Robinson indicated that he

understood the maximum penalty that he might receive, and after

the court reviewed the material terms of the plea agreement,

Robinson stated that he understood the agreement and approved of

it knowingly and voluntarily.

     In preparation for sentencing, the Probation Office issued a


                                -3-
presentencing report (the “PSR”), which recommended that

Robinson’s adjusted offense level be set at twenty-seven.         The

PSR initially recommended a base offense level of twenty-four

because Robinson committed the crime of conviction (felon in

possession of a firearm) after previously having been convicted

of aggravated assault (a crime of violence) and distribution of

crack cocaine (a controlled substance offense).        See U.S.

SENTENCING GUIDELINES MANUAL § 2K2.1 (2003).1   The PSR then

recommended adding two levels pursuant to U.S.S.G.

§ 2K2.1(b)(1)(A) because the probation officer determined that

the offense involved three firearms.       Specifically, the probation

officer found that Robinson possessed a firearm on November 11,

2000, December 7, 2000 (the crime of conviction), and June 9,

2001.    Furthermore, the PSR recommended adding four levels

pursuant to U.S.S.G. § 2K2.1(b)(5) because Robinson used a

firearm in connection with another felony offense.        Specifically,

the probation officer found that Robinson had used firearms in

connection with aggravated assaults when he shot at other

individuals on November 11, 2000 and June 9, 2001.        The PSR also

recommended that Robinson’s offense level be reduced by three

levels for his acceptance of responsibility and his timely

notification of his intention to plead guilty.        Thus, the PSR

recommended that, on balance, Robinson’s base offense level of


     1
        The U.S. SENTENCING GUIDELINES MANUAL is hereinafter referred
to as the “Sentencing Guidelines” and cited as “U.S.S.G.”
                                   -4-
twenty-four be increased to a final adjusted offense level of

twenty-seven.

     Moreover, the PSR recommended that Robinson be assigned

nineteen criminal history points for the numerous offenses he had

previously committed.   This put him in a criminal history

category of six, which is the highest criminal history category

under the Sentencing Guidelines.   The PSR noted that the total

recommended period of incarceration under the applicable

Sentencing Guidelines for an offense level of twenty-seven and a

criminal history category of six was 130 to 162 months.

     On March 26, 2003, Robinson appeared before the district

court for sentencing.   Robinson’s counsel argued that the PSR’s

addition of two levels to Robinson’s offense level was improper

because the two other firearms that Robinson allegedly possessed

were not in his possession during the crime of conviction.

Furthermore, Robinson’s counsel argued that the possession of the

firearm during the crime of conviction (i.e., possession on

December 7, 2000) was not committed in connection with the

commission of another felony (i.e., it was not committed in

connection with the two incidents of aggravated assault that

occurred on November 11, 2000 and June 9, 2001).

     After hearing the testimony of an officer of the Waco Police

Department regarding the two other incidents of firearm

possession, the district court concluded that the government had

met its burden to show by a preponderance of the evidence that

                                -5-
Robinson possessed the firearms on those occasions.    The court

therefore added two levels to his offense level under U.S.S.G.

§ 2K2.1(b)(1)(A).   However, the court granted Robinson’s

objection to the addition of four levels under U.S.S.G.

§ 2K2.1(b)(5) because it agreed “out of an abundance of caution”

that the crime of conviction was not itself committed in

connection with the incidents of aggravated assault.

     Accordingly, the district court lowered the offense level

from the PSR’s recommended level of twenty-seven to twenty-three.

The court determined that the sentencing range for an offense

level of twenty-three and a criminal history category of six is

92 to 115 months imprisonment.2   The court imposed a sentence of

115 months incarceration followed by three years of supervised

release, a fine of $1,000, and a $100 mandatory assessment.

     Robinson did not file a direct appeal of his sentence.

However, he timely filed a pro se petition for habeas relief with

the district court under 28 U.S.C. § 2255.   In evaluating

Robinson’s pro se petition, we liberally construe his § 2255

motion and supporting brief in the light most favorable to him.

See, e.g., Castro Romero v. Becken, 256 F.3d 349, 354 n. 2 (5th

Cir. 2001) (noting the long-standing rule that pro se pleadings


     2
        The court also noted that had it granted Robinson’s other
objection and not added the two additional levels for the two
other firearm violations, the court would have been persuaded by
Robinson’s extensive criminal history to depart upwardly from the
Sentencing Guidelines to arrive ultimately at the same sentencing
range.
                               -6-
must be construed liberally).   Accordingly, we recognize that

Robinson argued two overlapping grounds for relief in his habeas

petition.   First, he argued that he was denied his right to

effective assistance of counsel because his attorney failed to

file a direct appeal after he allegedly requested that the

attorney do so.3   Specifically, Robinson claimed that his

attorney should have appealed his sentence because: (1) the

government violated the plea agreement because the PSR

recommended, and the Assistant United States Attorney (the

“AUSA”) advocated at sentencing, that the court enhance

Robinson’s sentence for relevant conduct (i.e., the two other

firearm violations), whereas the plea agreement stated that the

government would not prosecute him for any violations of Title 18

other than the firearm possession on December 7, 2000;4 and

(2) his sentence exceeded the statutory maximum because his total

punishment would last longer than ten years since he would be


     3
        In his § 2255 motion filed in the district court,
Robinson listed “[i]neffective assistance of counsel” as ground
one for relief, stating that “counsel failed to appeal to the
court of appeals.”
     4
        In his Memorandum of Law supporting his § 2255 motion,
Robinson stated:

     At sentencing, petitioner was sentenced for two other
     weapons that he was never charged with, nor convicted
     for. Petitioner informed counsel to appeal this issue
     to the court of appeals because the government has
     violated the terms of the Plea-Agreement, counsel never
     filed the notice of appeal, nor did he file a brief as
     required by Anders [v. California, 386 U.S. 738
     (1967)].
                               -7-
imprisoned for 115 months (i.e., nine years and seven months) and

then under supervised release for an additional three years.

Second, Robinson argued that the government breached the plea

agreement by requesting a sentencing enhancement and that,

accordingly, he was not bound by the plea agreement’s terms,

including the appeal-waiver.5   Robinson requested specific

performance of the plea agreement, i.e., that he be sent back to

the district court for resentencing pursuant to the plea

agreement; he did not argue that the plea agreement should be

invalidated.

     On March 16, 2004, the district court denied Robinson’s

§ 2255 motion.   The court first held meritless Robinson’s claim

that his sentence exceeded the statutory maximum, noting that the

three-year period of supervised release is not included in the

statutory maximum period of imprisonment.   Next, the court

responded to Robinson’s claim that the government breached the

plea agreement by recommending an enhancement of his sentence for

the two firearms violations for which he was never charged and to


     5
        In his § 2255 motion, Robinson lists “Breach of Plea-
Agreement” as ground two for relief, stating that “[t]he
government breached its [p]lea-[a]greement with petitioner.” In
his Memorandum of Law, Robinson states:

     Both the government and petitioner agreed that the
     charge in the indictment w[as] the lone charge that
     petitioner was pleading guilty to. . . . Clearly
     petitioner was not bound by the agreement once the
     government asked for a sentence that was not contained
     in the agreement. The government in effect modified
     the terms of the agreement.
                               -8-
which he did not plead guilty, stating that Robinson was not

actually sentenced for these violations but rather the violations

were taken into account as relevant conduct in determining his

sentence for the December 7, 2000 violation.    The court also

explained that the consideration of the other violations as

relevant conduct under the Sentencing Guidelines was appropriate

under Fifth Circuit precedent.    Finally, the court rejected

Robinson’s argument that he was denied effective assistance of

counsel when his attorney failed to file an appeal, stating that

Robinson waived his right to appeal in his plea agreement and

that the appeal would therefore have been fruitless.

Accordingly, the district court denied Robinson’s § 2255 motion

for habeas relief.

     Robinson timely filed a notice of appeal and requested a

certificate of appealability (“COA”) from the district court.

The district court denied his request.    Robinson now seeks a COA

from this court on his claims of “ineffective assistance of

counsel, denial of appeal as [of] right and breach of plea

agreement.”6

                          II.    DISCUSSION

A.   Standard of Review

     Under the Antiterrorism and Effective Death Penalty Act



     6
        The government initially did not respond to Robinson’s
COA request. After being ordered to file a brief with this
court, the government produced a largely unhelpful brief.
                               -9-
(AEDPA),7 a federal habeas petitioner may appeal a district

court’s dismissal of his § 2255 motion only if the district court

or the court of appeals first issues a COA.    28 U.S.C.

§ 2253(c)(1)(B) (2004); FED. R. APP. P. 22(b); Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003) (explaining that a COA is a

“jurisdictional prerequisite” without which “federal courts of

appeals lack jurisdiction to rule on the merits of appeals from

habeas petitioners”).    “[W]hen a habeas applicant seeks

permission to initiate appellate review of the dismissal of his

petition, the court of appeals should limit its examination to a

threshold inquiry into the underlying merit of his claims.”

Miller-El, 537 U.S. at 327 (citing Slack v. McDaniel, 529 U.S.

473, 481 (2000)).   “This threshold inquiry does not require full

consideration of the factual or legal bases adduced in support of

the claims.   In fact, the statute forbids it.”   Id. at 336.

     A COA will be granted “only if the applicant has made a

substantial showing of the denial of a constitutional right.”      28

U.S.C. § 2253(c)(2).    “A petitioner satisfies this standard by

demonstrating that jurists of reason could disagree with the

district court’s resolution of his constitutional claims or that

jurists could conclude the issues presented are adequate to

deserve encouragement to proceed further.”    Miller-El, 537 U.S.


     7
        AEDPA applies because Robinson filed his § 2255 habeas
petition on November 24, 2003, well after AEDPA’s effective date
of April 24, 1996. See Fisher v. Johnson, 174 F.3d 710, 711 (5th
Cir. 1999).
                               -10-
at 327 (citing Slack, 529 U.S. at 484).     In other words, “[t]he

petitioner must demonstrate that reasonable jurists would find

the district court’s assessment of the constitutional claims

debatable or wrong.”   Id. at 338.   Hence, “[t]he question is the

debatability of the underlying constitutional claim, not the

resolution of that debate.”   Id. at 342.    “[A] claim can be

debatable even though every jurist of reason might agree, after

the COA has been granted and the case has received full

consideration, that petitioner will not prevail.”     Id. at 338.

B.   Analysis

     As noted previously, in his pro se application for a COA,

Robinson advances interrelated claims that he was denied his

rights both to appeal and to effective assistance of counsel and

that the government breached the plea agreement.    Specifically,

he avers that his attorney was ineffective because he failed to

file an appeal even though Robinson requested that he do so.

Robinson asserts that, although he signed a plea agreement

waiving his right to appeal, his attorney should have appealed

his sentence upon his request on the ground that the government

breached the plea agreement when it asked the district court to

enhance his sentence for relevant conduct.8    Robinson claims that


     8
        Robinson’s COA application to this court mentions neither
his argument that his sentence exceeded the statutory maximum nor
his argument that his counsel was ineffective for failing to
appeal on that particular ground. We therefore consider those
arguments waived. Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir.
1999) (noting that issues not raised in the brief in support of a
                               -11-
he is entitled to specific performance of the terms of the plea

agreement because the government breached that agreement.

Moreover, Robinson argues that he is not bound by the plea

agreement’s appeal-waiver because of the government’s breach.9

The district court denied Robinson’s ineffective-assistance-of-

counsel claim in his § 2255 motion on the ground that Robinson

waived his right to appeal in his plea agreement.   The court also

rejected Robinson’s argument that the government breached the

plea agreement because the PSR recommended a sentencing

enhancement for relevant conduct and the AUSA defended that

recommendation at the sentencing proceedings.

     Turning first to the district court’s determination that the

government did not breach the plea agreement and that Robinson

was therefore bound by his appeal-waiver, we find that the

district court’s decision is not debatable among jurists of

reason.   A claim that the government breached the terms of a plea

agreement implicates constitutional due process concerns.     See

United States v. Martin, 25 F.3d 211, 217 (4th Cir. 1994) (“If

the government breaches express or implied terms of a plea

agreement, a violation of due process occurs.”) (citing Mabry v.

Johnson, 467 U.S. 504, 509 (1984)); United States v. Goldfaden,



COA application are waived).
     9
        We note the inherent tension between Robinson’s arguments
that he is not bound by the plea agreement’s waiver provision and
that he is, at the same time, entitled to specific performance of
the plea agreement.
                               -12-
959 F.2d 1324, 1328 (5th Cir. 1992).   “If a guilty plea is

entered as part of a plea agreement, the government must strictly

adhere to the terms and conditions of its promises.”     United

States v. Valencia, 985 F.2d 758, 760 (5th Cir. 1993).

Furthermore, if a guilty plea “rests in any significant degree on

a promise or agreement of the prosecutor, so that it can be said

to be part of the inducement or consideration, such promise must

be fulfilled.”   Santobello v. New York, 404 U.S. 257, 262 (1971).

     The plea agreement at issue here indicates that the

government agreed not to prosecute Robinson for any crimes other

than the December 7, 2000 firearm violation.   Robinson argues

that because the PSR recommended that the district court consider

relevant conduct in determining his sentence and because the AUSA

defended that recommendation at sentencing, the government

breached that agreement.   This argument is plainly invalid.      “In

determining whether the terms of a plea agreement have been

violated, the court must determine whether the government’s

conduct is consistent with the defendant’s reasonable

understanding of the agreement.”   Valencia, 985 F.2d at 761.      Any

reasonable understanding of the plea agreement would reveal that

the government was bound not to prosecute Robinson for any other

violation of Title 18 of which it was then aware.   The government

did not agree not to argue for any sentencing enhancement for the

crime to which Robinson pled guilty, and the government’s

position in support of the district court’s consideration of

                               -13-
relevant conduct obviously did not constitute an additional

prosecution of Robinson for other violations of Title 18.10

Thus, the district court’s conclusion that the government did not

breach the plea agreement and that Robinson is bound by the plea

agreement’s waiver of his right to appeal his sentence is not

debatable among jurists of reason.   Accordingly, Robinson’s

request for a certificate of appealability to challenge the

district court’s conclusion on this ground is denied.

     Robinson also requests a COA on his ineffective-assistance-

of-counsel claim, through which he seeks to challenge the

district court’s decision that he was not denied effective

assistance of counsel when his lawyer failed to file a notice of

appeal covering his claim that the government breached the plea

agreement.   However, we need not reach this issue where, as here,

the defendant has already received all the relief to which he may

be entitled regarding the appeal of his sentence following his

guilty plea.   If Robinson’s counsel should have filed an appeal

claiming breach of the plea agreement,11 and if the district

     10
        Moreover, the district court’s conclusion that the
consideration of the relevant conduct was proper under Fifth
Circuit precedent is not debatable among jurists of reason. See
United States v. Brummett, 355 F.3d 343, 344-45 (5th Cir. 2003)
(per curiam), cert. denied, 124 S.Ct. 2053 (2004) (holding that
the district court properly considered a defendant’s possession
of firearms on occasions other than the crime of conviction as
relevant conduct warranting enhanced sentencing because the
additional offenses were sufficiently similar and close in time
to deem them part of an ongoing series of offenses).
     11
        We note that if a defendant instructs his court-
appointed attorney to file an appeal but the attorney believes
                               -14-
court’s conclusion that his counsel was not ineffective in

failing to file such an appeal is debatable because the grounds

for the appeal were not barred by the appeal-waiver,12 the remedy

in habeas would be to grant an out-of-time appeal.   See, e.g.,

United States v. West, 240 F.3d 456, 459-61 (5th Cir. 2001);

Barrientos v. United States, 668 F.2d 838, 842 (5th Cir. 1982)

(“[F]ailure of counsel to timely file an appeal upon request of

the defendant . . . would constitute ineffective assistance of


that the requested appeal is wholly frivolous, the attorney may
so advise the court and request permission to withdraw. See
Anders v. California, 386 U.S. 738, 744 (1967). However, the
attorney’s request should “be accompanied by a brief referring to
anything in the record that might arguably support the appeal.”
Id.
     12
        As noted above, the district court held that Robinson’s
counsel was not ineffective for failing to file an appeal because
Robinson waived his right to appeal in the plea agreement. This
court has repeatedly held that a defendant may waive his right to
appeal as part of a plea agreement so long as the waiver is
informed and voluntary. E.g., United States v. White, 307 F.3d
336, 343-44 (5th Cir. 2002); United States v. Wilkes, 20 F.3d
651, 653 (5th Cir. 1994) (per curiam); United States v. Melancon,
972 F.2d 566, 567 (5th Cir. 1992). However, in this circuit, we
permit a direct appeal claiming that the government breached the
plea agreement even where the defendant waived his right to
appeal. See United States v. Branam, 231 F.3d 931, 931 n.1 (5th
Cir. 2000) (per curiam) (noting, in a direct appeal in which the
defendant sought resentencing and specific performance of a plea
agreement, that “[w]e consider whether the [g]overnment breached
the plea agreement despite an appeal-waiver provision in the plea
agreement”); United States v. Price, 95 F.3d 364, 366-69 (5th
Cir. 1996) (per curiam) (resolving the merits of the defendant’s
appeal on the ground that the government breached the plea
agreement and that he was therefore entitled to specific
performance of the plea agreement, without addressing the effect
of the defendant’s waiver of any right to appeal his sentence);
see also United States v. Brown, 96 Fed. Appx. 570, 572 (10th
Cir. Apr. 22, 2004) (unpublished) (“A defendant’s waiver of
appellate rights does not bar the defendant from arguing on
appeal that the government breached the plea agreement.”).
                               -15-
counsel entitling the defendant to post-conviction relief in the

form of an out-of-time appeal.”).     Here, however, the district

court has already effectively given Robinson a direct appeal on

his breach-of-the-plea-agreement claim, which was fully

cognizable in the § 2255 proceeding, and the court has ruled

against him.   Thus, we need not explore the dimensions of

Robinson’s claim that his attorney was ineffective for failing to

file a notice of appeal because he has already been accorded all

the relief available to him.   Cf. Barrientos, 668 F.2d at 842-43.

We therefore deny Robinson’s request for a COA on his

ineffective-assistance-of-counsel claim.

                          III. CONCLUSION

     For the foregoing reasons, we DENY Robinson’s application

for a COA.




                               -16-
