                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                    December 26, 2006
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court



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

          Plaintiff - Appellee,

v.
                                                        No. 05-5009
                                                      (N.D. Oklahoma)
LUIS M ANUEL GONZALEZ, also
                                                (D.C. Nos. 02-CV-759-C and
known as Luis G onzalez, formerly
                                                        99-CR-66-C)
known as Sergio Loera, also known as
Auren Velasco, also known as Guero,
also know n as Luis,

          Defendant - Appellant.




                              OR D ER AND JUDGM ENT *


Before K E LL Y, M U R PHY , and HO LM ES, Circuit Judges.


I. Introduction

      Luis M anuel Gonzalez pleaded guilty to conspiracy to possess with intent

to distribute and to distribute methamphetamine and cocaine, in violation of 21

U.S.C. § 846. Based on a total offense level of fifty, pursuant to the United




      *
       This order and judgment is not binding precedent, except under the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 (eff. Dec.
1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
States Sentencing Guidelines, the district court sentenced him to life in prison.

After this court affirmed the conviction on direct appeal, Gonzalez moved to

vacate his sentence under 28 U.S.C. § 2255, alleging his attorney, Cindy

Cunningham, erroneously assured him he would receive only fourteen years in

prison if he pleaded guilty. The district court initially denied the motion without

holding an evidentiary hearing. On appeal, this court remanded to the district

court for an evidentiary hearing. United States v. Gonzalez, 98 F. App’x 825, 832

(10th Cir. 2004) (Gonzalez II). Following the evidentiary hearing, the district

court again denied Gonzalez’s motion, finding Cunningham had made no

assurances as to the length of sentence that would be imposed. Gonzalez appeals

the district court’s order denying his motion. This court exercises jurisdiction

pursuant to 28 U.S.C. §§ 1291 and 2253(a) and affirm s the order of the district

court.

II. Background

         Gonzalez, a M exican national with limited conversational English and a

sixth-grade education, was indicted for conspiracy to possess with intent to

distribute and to distribute methamphetamine and cocaine. The superseding

indictment listed Gonzalez as the principal supplier of methamphetamine for a

large distribution network. Cunningham, the assistant federal public defender

appointed to represent Gonzalez, spoke no Spanish and used an interpreter to

comm unicate with Gonzalez.

                                          -2-
      After initially pleading not guilty, Gonzalez entered a plea of guilty on

O ctober 1, 1999, follow ing a meeting with Cunningham and an interpreter. 1 At

the plea hearing, the district court engaged in a colloquy with Gonzalez in which

Gonzalez confirmed he was aware of the charges and was aware he faced a

potential life sentence. Gonzalez also stated he w as satisfied with Cunningham’s

representation. The petition to enter the guilty plea, which Gonzalez signed and

confirmed he had discussed with his attorney, included a provision explaining no

attorney had authority to promise him any particular sentence. Following this

hearing, the district court accepted Gonzalez’s guilty plea.

      Subsequently, Gonzalez arranged a meeting with the government in an

effort to provide cooperation sufficient to reduce his sentence. In a four-hour

meeting with the United States Attorney’s Office, however, Gonzalez provided no

useful information. The government therefore did not give a favorable sentence

recommendation as a result of this meeting.

      The presentence investigation report (“PSR”) prepared after Gonzalez’s

guilty plea indicated a total offense level of fifty. It based this calculation on a

base offense level of thirty-eight for involvement in the sale of more than fifteen




      1
       The parties dispute the length of the meeting on October 1. W hile
Gonzalez claims the meeting lasted just fifteen minutes, the government contends
the meeting could have lasted up to an hour. The district court found the
evidence supported the conclusion that they spoke “much longer than the fifteen
to twenty minutes” alleged by Gonzalez.

                                          -3-
kilograms of methamphetamine, a two-point enhancement for possession of a

firearm, a two-point enhancement for the unlawful importation of listed

chemicals, a four-point enhancement for his role as organizer of a criminal

activity, a two-point enhancement for the use of children to commit the offense,

and a two-point enhancement for obstruction of justice based on Gonzalez’s

attempt to bribe and intimidate a witness while in jail. Additionally, the PSR did

not give Gonzalez a downward adjustment for acceptance of responsibility

because he had obstructed justice. Based on the PSR, Cunningham informed

Gonzalez he was likely facing life imprisonment. Gonzalez alleges this was the

first time Cunningham had ever discussed the possibility of a life sentence.

      At the sentencing hearing, Gonzalez told the court he pleaded guilty only

because Cunningham and Doug Horn, the Assistant United States A ttorney, told

him he would receive an unconditional fourteen-year sentence as a result of his

plea. 2 Cunningham denied making any promises to Gonzalez, stating “I certainly

know better than to make any promises of any amount of time to any client. I

would never make that representation.” The district court noted Gonzalez had

been informed of the maximum sentence at the time of his plea. The court then

sentenced Gonzalez to life in prison, based on an adoption of the reasoning set

forth in the PSR.



      2
       Gonzalez later retracted his statement as to Horn and limited his claim to
the promise made by Cunningham.

                                        -4-
      Gonzalez first brought a direct appeal of his conviction and sentence,

arguing his guilty plea was not knowing, intelligent, and voluntary because he did

not fully understand the proceedings or the extent of punishment he faced. This

court affirmed the conviction and the sentence, holding the district court properly

complied with Rule 11 of the Federal Rules of Criminal Procedure and

Gonzalez’s guilty plea was knowing, intelligent, and voluntary. Gonzalez then

moved to vacate his sentence under 28 U.S.C. § 2255, contending Cunningham’s

false promises of a fourteen-year sentence constituted ineffective assistance of

counsel and improperly coerced his guilty plea. The district court initially denied

the motion without an evidentiary hearing, finding no credible evidence to

support Gonzalez’s claim. On appeal, however, this court remanded to the

district court for an evidentiary hearing on the issue of ineffective assistance of

counsel. Gonzalez II, 98 F. App’x at 832.

      At the evidentiary hearing, the court heard testimony from Cunningham and

Gonzalez, as well as other w itnesses. Gonzalez also introduced Cunningham’s

notes and a letter written by Cunningham in response to a complaint by Gonzalez

filed with the O klahoma Bar Association (“O BA”). Following the evidentiary

hearing, the district court again concluded Gonzalez had failed to establish a

claim for ineffective assistance of counsel. In doing so, the court rejected

Gonzalez’s testimony on this matter and found Cunningham m ade no promise as

to the length of sentence G onzalez w ould receive. Additionally, the district court

                                          -5-
found any estimate of a reduced sentence given by Cunningham w as contingent

on Gonzalez’s full cooperation with the government.

III. Analysis

      On appeal, Gonzalez argues Cunningham’s ineffective assistance during the

plea process coerced him into entering a plea which was not knowing and

voluntary. Specifically, he alleges Cunningham recklessly promised him he

would receive only fourteen years in prison if he pleaded guilty, 3 failing to

adequately investigate and inform him of sentencing enhancements that would

likely result in a life sentence. 4 He further contends he would not have pleaded

guilty if not for that misrepresentation. Although the district court found

Cunningham made no such promises, Gonzalez argues documentary evidence

presented at the evidentiary hearing establishes these findings are clearly

erroneous. This court has reviewed the evidence Gonzalez relies on and

concludes there is sufficient evidence to support the district court’s findings.




      3
         In his brief, Gonzalez also characterizes this promise as a promise of nine
to fifteen years. For purposes of consistency and simplicity, this court will
identify the alleged promise as fourteen years, rather than nine to fifteen.
      4
        Gonzalez indirectly raises additional instances of alleged ineffective
assistance of counsel involving Cunningham’s failure to object to various
sentence enhancements. Gonzalez’s appeal, however, does not challenge the
sentence imposed and seeks only to vacate his plea and reverse his conviction.
Thus, this court need not address these other claims because ineffectiveness at the
time of sentencing could have no bearing on the voluntariness of Gonzalez’s plea.

                                         -6-
      In review ing a district court’s denial of a § 2255 motion, this court review s

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 of

ineffective assistance of counsel constitutes a mixed question of fact and law and

is reviewed de novo. Id.

      A guilty plea is valid only if it is entered by the defendant knowingly,

voluntarily, and intelligently. United States v. Hurlich, 293 F.3d 1223, 1230

(10th Cir. 2002). This standard is satisfied only if the defendant has “a full

understanding of what the plea connotes and of its consequences.” Id. (quoting

Boykin v. Alabam a, 395 U.S. 238, 244 (1969)). Thus, a guilty plea is void if it is

“induced by promises . . . which deprive it of the character of a voluntary act.”

Wellnitz v. Page, 420 F.2d 935, 936 (10th Cir. 1970) (quotation omitted). W hen a

defendant enters a guilty plea on the advice of counsel, the defendant may attack

the voluntariness of the plea by showing ineffective assistance of counsel. Hill v.

Lockhart, 474 U.S. 52, 56-57 (1985).

      To successfully challenge a guilty plea based on ineffective assistance of

counsel, the defendant must show “that counsel’s performance fell below an

objective standard of reasonableness and that, but for counsel’s error, the

defendant would have insisted upon going to trial.” United States v. Silva, 430

F.3d 1096, 1099 (10th Cir. 2005) (citing Hill, 474 U.S. at 58-59). This court has

repeatedly recognized that an attorney’s material misrepresentations to the

                                           -7-
defendant as to the consequences of a plea may render a plea involuntary. Id.;

Laycock v. New M exico, 880 F.2d 1184, 1186 (10th Cir. 1989). This

misinformation, however, generally must consist of false promises or guarantees.

See Fields v. Gibson, 277 F.3d 1203, 1213 (10th Cir. 2002); Braun v. Ward, 190

F.3d 1181, 1189-90 (10th Cir. 1999). A mere miscalculation or erroneous

sentence estimate by defense counsel “is not a constitutionally deficient

performance rising to the level of ineffective assistance of counsel.” United

States v. Gordon, 4 F.3d 1567, 1570 (10th Cir. 1993).

      In support of his claim that a promise was made, Gonzalez relies primarily

on tw o pieces of documentary evidence presented at the evidentiary hearing. H e

first points to Cunningham’s notes from August 17, 1999, which contain a

calculation of a fourteen-year sentence, apparently based on her application of the

Sentencing Guidelines. Additionally, Gonzalez relies on Cunningham’s letter to

the OBA. In this letter, Cunningham w rote, “Based on the initial amount of drugs

reported by the government, it did appear that M r. Gonzalez could be looking at

anywhere from nine to fifteen years.” As noted by this court in G onzalez’s first

appeal of the denial of his § 2255 motion, if Gonzalez were able to establish

Cunningham communicated these estimates to him as promises and he relied on

these promises in pleading guilty, his claim would likely succeed. Gonzalez II,

98 F. App’x at 830; see also Wellnitz, 420 F.2d at 936 (“[I]f an attorney

recklessly promises his client that a specific sentence will follow upon a guilty

                                         -8-
plea . . . the question may arise . . . whether such representation may be deemed

constitutionally ineffective.”).

      Contrary to Gonzalez’s assertions, however, neither the August 17 notes

nor the letter to the O BA provides conclusive evidence a promise was made. At

most, they show only that Cunningham m ade an erroneous estimate of the

sentence. Although this estimate was substantially below the life sentence

ultimately imposed by the district court, this does not alone invalidate the plea.

See Thomas v. Kerby, 44 F.3d 884, 886 (10th Cir. 1995). Likewise, even if

Gonzalez formed false expectations as to the length of his sentence based on

Cunningham’s advice, “[a] defendant’s subjective understanding . . . if it is not

based upon any promise made by the defense attorney, the prosecutor, or the

court, will not undermine the constitutionality of the plea . . . .” Cunningham v.

Diesslin, 92 F.3d 1054, 1061 (10th Cir. 1996). In light of the district court’s

finding that no promise was made, Cunningham’s erroneous estimate as to the

sentence does not fall below an objective standard of reasonableness.

      The district court further found Cunningham informed Gonzalez that the

possibility of a fourteen-year sentence was contingent on his cooperation with the

government. Based on the testimony at the evidentiary hearing, this court

concludes such a finding was not clearly erroneous. First, Cunningham testified

her fourteen-year sentence estimate was based on Gonzalez’s cooperation with the

government. She explained she told Gonzalez “many times” he could avoid a life

                                         -9-
sentence only if he cooperated. Although Cunningham’s notes do not mention

substantial assistance as a prerequisite to her fourteen-year sentence calculation,

this does not mean she could not have discussed this requirement with Gonzalez.

In addition, Gonzalez’s girlfriend, Patricia Barragan, testified that both

Cunningham and Gonzalez told her he would receive fourteen to fifteen years if

he cooperated with the government. Further, Gonzalez did in fact meet with the

government following his guilty plea in an effort to provide assistance. W hile

there is conflicting testimony regarding whether the fourteen-year estimate was

contingent on Gonzalez’s cooperation, 5 it is ultimately the role of the district

court, not the appellate court, to assess credibility and weigh the evidence before

it. United States v. Browning, 252 F.3d 1153, 1157 (10th Cir. 2001). Given the

evidence in the record, it was not clearly erroneous for the district court to find

Gonzalez was aware he could receive the fourteen-year sentence only if he

provided substantial assistance to the government. His failure to provide such

assistance cannot render Cunningham’s representation constitutionally deficient.

      There is also sufficient evidence in the record to support the district court’s

conclusion that Gonzalez was made aware of the possibility of a life sentence




      5
       Although Barragan testified the fourteen-year sentence was contingent on
Gonzalez’s cooperation, she also testified the sentence was not contingent on his
cooperation. Likewise, Gonzalez explained he met with the government
following the plea not to avoid a life sentence, but rather in an effort to reduce his
sentence below fourteen years.

                                         -10-
before entering his plea. The district court found Cunningham w as aware, prior

to the guilty plea, that Gonzalez faced a life sentence if he failed to give the

government his full cooperation. The court then found Cunningham met with

Gonzalez on September 30, 1999, and October 1, 1999, informing him he could

receive a maximum of a life sentence if he pleaded guilty. Gonzalez has failed to

convince this court these findings are clearly erroneous.

      Gonzalez challenges the district court’s findings in two respects. He first

argues Cunningham did not adequately investigate the possible sentence

enhancements and therefore could not have been aware he likely faced a life

sentence. Although Cunningham’s name is notably absent from the United States

Attorney’s discovery logs, she and Horn each testified they discussed the

sentencing enhancements prior to the change of plea. Thus, the absence of her

name from the discovery logs does not conclusively show she was not adequately

aware of the additional sentencing enhancements. 6 Even if she had not been

aware of the specific enhancements, however, the evidence supports the

conclusion she was adequately aware of the possibility additional enhancements




      6
         This court recognizes that where erroneous advice is based on the
attorney’s failure to investigate the facts of the case in good faith, this failure may
rise to the level of ineffective assistance of counsel, even if no promise is made.
See Moore v. Bryant, 348 F.3d 238, 241 (7th Cir. 2003). In this case, however,
there was sufficient evidence to support the finding that Cunningham had
adequately informed herself of the sentencing enhancements w hich could result in
a life sentence for Gonzalez.

                                          -11-
could arise. Further, to the extent Gonzalez’s sentence was enhanced based on

information not made available until after his guilty plea, neither his nor

Cunningham’s lack of awareness of these specific enhancements has any bearing

on his claim. Cf. Silva, 430 F.3d at 1099 (“[N]ew information later appearing in

the presentence report concerning criminal history does not render the plea

unknowing and involuntary.”).

      Gonzalez also argues the evidence does not support the district court’s

finding that Cunningham met with Gonzalez prior to the guilty plea to inform him

of the possibility of a life sentence. W hile there are certainly two plausible

versions of what happened on September 30 and October 1, the version accepted

by the district court is not clearly erroneous. In addition to Cunningham’s

testimony that she informed Gonzalez of possible sentencing enhancements and a

potential life sentence, Cunningham’s notes and court records support the

conclusion she spoke with Gonzalez to some extent on those dates. 7 Additionally,

Gonzalez explicitly acknowledged during his change of plea hearing that he

understood the sentence “would be a period of imprisonment no less than ten



      7
        It is undisputed Gonzalez and Cunningham w ere present in the courtroom
together on September 30, 1999, for the pretrial conference, and Cunningham’s
notes from that date indicate some discussion took place. Although court records
indicate the interpreter was “not needed” at the hearing, it is undisputed she was
present. Further, Gonzalez testified he was able to speak briefly with
Cunningham without an interpreter on two occasions, despite not being able to
understand her well. As to the meeting on October 1, the parties dispute only the
length of the meeting and do not dispute a meeting with an interpreter occurred.

                                         -12-
years and it could be for life.” He also signed a petition to enter the guilty plea in

which he recognized no one had the authority to promise him any particular

sentence. While Gonzalez may have hoped or expected to receive a sentence less

than the maximum, his erroneous expectation does not require the plea to be

invalidated. Fields, 277 F.3d at 1214.

      Because Gonzalez has failed to establish Cunningham assured him he

would receive only fourteen years if he pleaded guilty and because the district

court found Cunningham adequately informed him of the possibility of a life

sentence, he has failed to show her performance “fell below an objective standard

of reasonableness.” See Silva, 430 F.3d at 1099. Therefore, this court need not

reach the second prong of the ineffective assistance analysis. See Strickland v.

Washington, 466 U.S.668, 697 (1984) (“[T]here is no reason for a court deciding

an ineffective assistance claim . . . to address both components of the inquiry if

the defendant makes an insufficient showing on one.”).

IV. Conclusion

      For the foregoing reasons, this court affirms the district court’s denial of

Gonzalez’s § 2255 motion.

                                         ENTERED FOR THE COURT


                                         M ichael R. M urphy
                                         Circuit Judge




                                          -13-
