                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   July 31, 2012
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

                 Plaintiff-Appellee,                     No. 12-6073
          v.                                           (W.D. of Okla.)
 GEORGE BRYAN WALTERS,                        (D.C. Nos. 5:11-CV-01388-C and
                                                    5:10-CR-00247-C-1)
                 Defendant-Appellant.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **


      George Bryan Walters, a federal prisoner proceeding pro se, seeks a

certificate of appealability (COA) to appeal the district court’s order dismissing

his 28 U.S.C. § 2255 petition for post-conviction relief. Walters alleges his trial

counsel was constitutionally ineffective in advising him to enter a guilty plea and

that the government breached his plea agreement. We DENY Walters’s

application for a COA.


      *
         This order is not binding precedent except under the doctrines of law of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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
                                 I. Background

      Walters was arrested in 2010 after an FBI agent downloaded images of

child pornography from his computer via a file-sharing network. Walters agreed

to plead guilty to a charge of possessing child pornography, in violation of 18

U.S.C. § 2252A(a)(5)(B), and agreed to allow the FBI to use his online identity to

investigate other suspected traffickers in child pornography. In exchange, the

prosecutor assigned to his case agreed not to charge him with several more

serious child pornography offenses, including distribution. He was sentenced to

120 months in prison followed by 60 months of supervised release.

      Soon after he was sentenced, Walters filed a § 2255 motion seeking to

vacate, set aside, or correct his sentence. He argues his trial counsel was

constitutionally ineffective for failing to advise him of all relevant facts and

circumstances surrounding his guilty plea and for failing to object to the

application of several enhancements to his sentence. He also claims the

government breached the plea agreement when it sought these enhancements. 1




      1
          Walters’s plea agreement was not included in the appellate record.
Nonetheless, we have authority to review it because we may take judicial notice
of public records, including district court filings. See United States v. Smalls, 605
F.3d 765, 768 n.2 (10th Cir. 2010) (taking judicial notice of district court record
that was not part of the record on appeal). Walters’s plea agreement is in the
district court record for his original criminal case. United States v. Walters, No.
5:10-CR-00247-C-1 (W.D. Okla. Dec. 9, 2010). We hereby sua sponte
supplement the appellate record with this agreement.

                                         -2-
       The district court denied Walters’s motion, finding his counsel’s

performance was not deficient under the test laid out in Strickland v. Washington,

466 U.S. 668 (1984). The court also denied Walters’s motion to proceed in forma

pauperis on appeal. The court did not rule on whether Walters would receive a

COA.

                                 II. Discussion

       A prisoner may appeal from the denial of federal habeas relief under 28

U.S.C. § 2255 only if the district court or this court first issues a COA. 28 U.S.C.

§ 2253(c)(1). The district court did not issue Walters a COA, nor has he

requested one from this court. Because Walters is proceeding pro se, we construe

his filings liberally. Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007).

Accordingly, we construe his notice of appeal as a request for a COA. See Fed.

R. App. P. 22(b)(2).

       Before granting a COA, we must conclude Walters “has made a substantial

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

bears the burden of demonstrating “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, 484 (2000) (quotation omitted).

       Walters does not meet this burden.



                                         -3-
      A. Ineffective Assistance

      To prevail on his claim of ineffective assistance of counsel, Walters must

show by a preponderance of the evidence that (1) his counsel’s performance fell

below an objective standard of reasonableness, Strickland, 466 U.S. at 688, and

(2) “there is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different,” id. at 694. In analyzing

the first prong, we apply the strong presumption that “counsel’s conduct falls

within the wide range of reasonable professional assistance. Id. at 689.

      As for the second prong, a defendant raising an ineffective assistance claim

related to a plea agreement must show that, but for his counsel’s deficient

performance, he would not have pleaded guilty and would have instead proceeded

to trial. United States v. Clingman, 288 F.3d 1183, 1186 (10th Cir. 2002)

(quotation omitted). This requires that we examine the circumstances

surrounding the defendant’s plea to determine the likelihood that had counsel not

committed the error, the defendant would not have pleaded guilty. Miller v.

Champion, 262 F.3d 1066, 1072 (10th Cir. 2001) (citing Hill v. Lockhart, 474

U.S. 52, 59 (1985)).

      Walters first raises a variety of arguments which tend to allege his counsel

failed to fully inform him of the consequences of his plea agreement. He claims

his attorney incorrectly informed him the government would not use against him




                                         -4-
any information it obtained after April 9, 2010, and that he would likely receive

an 18-to-24-month sentence under the agreement. 2

      These arguments are unpersuasive. Even if we assume, arguendo, that

Walters’s counsel deficiently misinformed his client of the consequences of his

guilty plea, Walters cannot establish prejudice because we find it unlikely that he

would have rejected the government’s offer and proceeded to trial but for this

deficient performance. Walters does not argue the evidence against him was

weak, or that his counsel failed to uncover exculpatory evidence, move to

suppress evidence, or take a similar action that would have affected his chances at

trial. Thus, it is unlikely Walters would have chosen to proceed to trial even if

his counsel had fully informed him of the potential sentence he faced.

      This conclusion is bolstered by the fact that the plea agreement Walters’s

counsel negotiated substantially reduced his client’s potential sentence. Walters

faced charges of both possession and distribution of child pornography. The

latter carried a maximum sentence of 240 months. The plea bargain reduced his

maximum penalty by 50%—to 120 months. Walters’s pre-sentence report

established a guideline range of 135 to 168 months, so it is likely the agreement

reduced his sentence by 15 to 48 months. Walters does not allege different


      2
         Walters also asserts for the first time on appeal that he has “demented
intellectual skills,” which presumably made it difficult for him to understand the
plea agreement. Aplt. Br. at 3. He provides no support for this claim in the form
of a psychiatric or medical diagnosis, and we will not credit it.

                                        -5-
counsel could have obtained a better deal, nor do we find it likely Walters would

have chosen to proceed to trial had he fully understood the sentence he faced

under the agreement. As the district court found, the fact that the plea agreement

his counsel arranged helped him avoid a much longer prison sentence makes it

very unlikely he would have rejected the agreement and proceeded to trial but for

his counsel’s deficient performance.

      Walters’s second argument is that his trial counsel was deficient for failing

to the application of several sentence enhancements. Walters claims these

enhancements were imposed in violation of his plea agreement, as they were

based on information obtained after April 9, 2010.

      This argument is also unpersuasive. As we discuss below, the government

did not breach its plea agreement with Walters, either by using information it

obtained after April 9, 2010 or by seeking various enhancements to his sentence.

Thus, his counsel was not deficient for failing to object on this basis.

      Walters also does not establish his counsel was deficient for failing to

object to these enhancements on the basis that they were inapplicable. He has not

shown any of the enhancements he objects to were improperly applied. He failed

to argue below that a five-level distribution enhancement under United States

Sentencing Guideline (USSG) § 2G2.2(b)(3)(B) for distribution of child

pornography in expectation of a thing of value was improperly applied. We

generally do not consider arguments raised for the first time on appeal. United

                                          -6-
States v. Denogean, 79 F.3d 1010, 1012 (10th Cir. 1996). We may do so in the

case of a plain error, but this exception is to be used sparingly, and only where a

miscarriage of justice would otherwise result. Id. A plain error results when

there is “(1) error, (2) that is plain, which (3) affects substantial rights, and which

(4) seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir.

2005) (internal quotation omitted).

      The district court did not plainly err by imposing this enhancement.

Walters argues it should not apply because he pleaded guilty to possessing, not

distributing, child pornography. But we have previously applied this

enhancement to defendants who pleaded guilty only to possession. See United

States v. Geiner, 498 F.3d 1104, 1108–09 (10th Cir. 2007).

      Walters further argues the enhancement should not apply because there was

no evidence he expected to receive a thing of value in exchange for posting his

illicit images to be downloaded. Geiner held that use of a peer-to-peer file-

sharing network does not automatically support enhancement under USSG

§ 2G2.2(b)(3)(B) without additional evidence, such as evidence a defendant

expected to receive some benefit in exchange for sharing files. Id. at 1111–12.

Geiner found that sharing files to receive enhanced download speeds was

sufficient evidence to support the enhancement. Id. Since Geiner, some circuits

have found the technical savvy of a defendant, who understands his use of a file-

                                           -7-
sharing network means other users can download files from his computer, is

sufficient additional evidence to support this enhancement. See, e.g., United

States v. Stults, 575 F.3d 834, 849 (8th Cir. 2009); United States v. Bolton, 669

F.3d 780, 783 (6th Cir. 2012). Walters, an information technology administrator

for the Federal Aviation Administration who owned several computers and other

electronic devices, was clearly technically savvy and understood the implications

of using file-sharing software. We have not held such circumstantial evidence is

sufficient under Geiner to support imposition of the § 2G2.2(b)(3)(B)

enhancement, but we have not held it is insufficient, either. Thus, the district

court’s imposition of this enhancement, even if it was error, was not plain.

      As for the other enhancements, Walters’s arguments are without merit. He

claims a two-level enhancement for images depicting children under 12 applies

only to distribution offenses. United States v. Pearl, 324 F.3d 1210, 1216 (10th

Cir. 2003) (discussing USSG § 2G2.2(b)(2)). But although Pearl cites

§ 2G2.2(b)(2), it clearly intended to refer to § 2G2.2(b)(3), as it discusses a five-

level enhancement for distribution. He also claims a four-level enhancement for

images depicting sadistic or violent conduct, § 2G2.2(b)(4), should not apply

because he did not seek out this material, but this enhancement applies regardless

of whether the defendant sought out these images. USSG § 2G2.2, cmt. n.2. His

only argument regarding a five-level enhancement for possession of 600 or more

images, § 2G2.2(b)(7)(D), is that the government breached its plea agreement by

                                          -8-
seeking it because this quantity of images was discovered after April 9, 2010. As

we discuss below, this argument is unpersuasive.

      Because Walters cannot show that these enhancements do not apply to him,

he cannot establish that his counsel was deficient for failing to object to their

application. Walters thus fails to overcome the strong presumption that his

counsel’s performance fell within the wide range of reasonable professional

assistance.

      B. Breach of Agreement

      Walters’s second claim is that the government breached the plea agreement

it made with him by using information obtained after April 9, 2010 to seek

several sentence enhancements. We review de novo the question of whether the

government has breached a plea agreement, even when the defendant fails to

preserve this objection. United States v. VanDam, 493 F.3d 1194, 1199 (10th Cir.

2007). We apply general principles of contract law to determine the scope of the

government’s obligations under the agreement. United States v. Guzman, 318

F.3d 1191, 1195 (10th Cir. 2003). Thus, we examine the express language in the

agreement to identify the nature of the government’s promise and the defendant’s

reasonable understanding of this promise. United States v. Rockwell Int’l Corp.,

124 F.3d 1194, 1199 (10th Cir. 1997). We construe any ambiguities against the

government, as the drafting party, and examine the record as a whole to determine

whether the government kept its promise. VanDam, 493 F.3d at 1199.

                                          -9-
      The government told Walters on April 9, 2010, that if he cooperated in its

investigation, it would not use additional information it obtained in its case-in-

chief against him. But it also told him this was not a plea agreement. When

Walters later agreed to plead guilty, his plea agreement specifically stated that it

superseded any earlier promises or agreements made by the government. And

when Walters entered his guilty plea, he informed the court he understood his

plea agreement superseded any earlier promises made by any government official.

That agreement stated that the government would cease actively investigating

Walters upon execution of the agreement, but could still inform the court of any

information it obtained after that date, as well as seek sentence enhancements.

We find these provisions clear and unambiguous.

      Thus, the government did not breach its agreement with Walters by seeking

to enhance his sentence, even if it did so using information it obtained after

April 9, 2010.

                                 III. Conclusion

      For the foregoing reasons, we DENY Walters’s request for a COA and

DISMISS his appeal. We also DENY Walters’s motion to proceed in forma

pauperis on appeal, his motion for relief from judgement, and his motion to hold




                                         -10-
his petition in abeyance.


                                   Entered for the Court,

                                   Timothy M. Tymkovich
                                   Circuit Judge




                            -11-
