                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                        April 30, 2008
                            FOR THE TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                        Clerk of Court


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,                       No. 07-2222
                                               (D.C. Nos. CIV-04-903-MCA/WDS
    v.                                               and CR-02-598-MCA)
                                                           (D. N.M.)
    JOSE CARLOS ARRAS, JR.,

                Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before BRISCOE, PORFILIO, and BALDOCK, Circuit Judges.


         Following a jury trial, Jose Carlos Arras, Jr. was convicted of conspiring to

import into the United States more than 100 kilograms of marijuana and

conspiring to possess that marijuana with the intent to distribute. After this court

affirmed his conviction in United States v. Arras, 373 F.3d 1071 (10th Cir. 2004),

Mr. Arras filed a 28 U.S.C. § 2255 motion in the district court to set aside his




*
       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. This order and judgment 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
sentence. The district court denied the motion and granted Mr. Arras a certificate

of appealability on the issue of ineffective assistance of counsel. We affirm.

                                 I. B ACKGROUND

      We take the following facts from this court’s opinion in Mr. Arras’s direct

criminal appeal:

             The government’s key trial witness, Tammy Nielsen, testified
      [that Mr. Arras and Lorenzo Ruiz] hired her to transport drugs to
      Denver, Colorado, from El Paso, Texas, and Juarez, Mexico, on four
      separate occasions between December 2001 and February 2002. On
      her first trip, she arrived in El Paso by bus and met Mr. Arras, who
      gave her the keys to a 1983 Mercury Marquis she was to drive to
      Denver. He insisted she check the oil and tire pressure regularly.
      When she arrived in Denver, Mr. Ruiz paid her $2,000. Ms. Nielsen
      subsequently made two trips originating from Juarez that followed
      the same pattern, except she was paid $4,000 based on the added risk
      of crossing the border. On each trip, prior to her departure for
      Denver, Mr. Arras met her and again told her to be careful to check
      the car’s oil and tire pressure often. During her fourth trip, which
      began in Juarez, Ms. Nielsen was arrested as she entered the United
      States at the Santa Theresa border crossing. Customs agents
      discovered thirty-nine kilograms of marijuana in metal canisters
      inside the tires of the car.

Arras, 373 F.3d at 1073.

      The government indicted Mr. Arras on one count of conspiracy to import

less than fifty kilograms of marijuana and one count of conspiracy to possess with

intent to distribute. Mr. Arras was adamant about going to trial and clashed with

his court-appointed attorney, who “was too insistent on a plea.” Aplt. App.,

Vol. I at 8. After that attorney withdrew, the district court appointed Anthony

White. During their initial consultation, Mr. Arras conveyed to White that he

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wanted a trial and was very unhappy with his former attorney’s pursuit of a plea

bargain.

      Shortly thereafter, the government filed a superceding indictment,

increasing the amount of marijuana allegedly involved to more than 100

kilograms. The government also offered Mr. Arras a plea bargain, which was

contingent upon acceptance by both Mr. Arras and his co-defendant, Lorenzo

Ruiz. White told Mr. Arras that “there’s a plea agreement out there,” but he did

not “go through the particular parts” because Mr. Arras said he did not want to

plead. Id. at 41-42. Ruiz also was not interested in a plea.

      In discussing trial strategy, Mr. Arras alerted White to two municipal

citations he had been issued while in Mexico for use in establishing an alibi or

impeaching Nielsen. The citations would have provided “some verification that

[Mr. Arras] was not in the State of Texas at the time that . . . Nielsen claimed he

was” during her fourth marijuana delivery. Id. at 28. White obtained the

citations only three days before trial and did not use them.

      During jury selection, the government filed a 21 U.S.C. § 851 enhancement

information. White did not discuss the significance of that filing until after the

trial. Mr. Arras did not testify at trial and was convicted on both counts. The

district court sentenced him to 262-months’ imprisonment.

      In his § 2255 motion, Mr. Arras argued that White was ineffective in not

“pursu[ing] an opportunity to plea bargain” and not promptly “communicat[ing]

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the enhancement information and [its] implications.” R., Doc. 1 at 4. He also

raised White’s “fail[ure] to authenticate and admit into evidence” the Mexican

citations. Id. at 5. A magistrate judge held an evidentiary hearing and then

recommended that the motion be denied. Regarding the proposed plea bargain

and enhancement information, the magistrate judge concluded that White

performed deficiently, but that there was no prejudice because (1) Mr. Arras was

adamantly opposed to plea bargaining; and (2) the government’s plea offer could

not have been accepted given that Ruiz was not interested in pleading. Regarding

the citations, the magistrate judge concluded that White did not perform

deficiently because (1) Mr. Arras was responsible for the citations’ late

production, (2) Mr. Arras’s presence during the fourth delivery was not material

to his involvement in the charged conspiracies, and (3) introducing the citations at

trial would have required Mr. Arras to take the stand, exposing him to

cross-examination about his prior drug-trafficking convictions.

      The district court adopted the recommendation and denied Mr. Arras’s

motion, prompting the instant appeal.

                                  II. D ISCUSSION

                              A. Standards of Review

      “[W]e review the district court’s legal rulings on a § 2255 motion de novo

and its findings of fact for clear error.” United States v. Pearce, 146 F.3d 771,

774 (10th Cir. 1998).

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                              B. Assistance of Counsel

      “[C]riminal defendants have a Sixth Amendment right to ‘reasonably

effective’ legal assistance.” Roe v. Flores-Ortega, 528 U.S. 470, 476 (2000)

(quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). This right is

violated when counsel’s representation falls “below an objective standard of

reasonableness,” Strickland, 466 U.S. at 688, and “there is a reasonable

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

proceeding would have been different,” id. at 694.

      Mr. Arras re-asserts his district court arguments concerning White’s

handling of the Mexican citations and the government’s plea offer and

enhancement information. After reviewing the record, the parties’ appellate

briefs, the magistrate judge’s thorough report and recommendation, and the

relevant legal authorities, we conclude that the district court did not err in

denying Mr. Arras’s § 2255 motion.

      Accordingly, we AFFIRM the district court’s judgment for substantially the

same reasons given by the magistrate judge in his report and recommendation

dated May 31, 2007.

                                                      Entered for the Court


                                                      John C. Porfilio
                                                      Circuit Judge




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