                                                                        F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        January 2, 2007
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court


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

                 Plaintiff-Appellee,                     No. 06-4082
          v.                                             (D. of Utah)
 JA M ES D ELO SS TR IN N A MA N,               (D.C. Nos. 2:05-CV-674-PGC
                                                    2:04-CR-185-DKW )
                 Defendant-Appellant.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges. **


      James Deloss Trinnaman pled guilty to one count of felon in possession of

a firearm . H e now seeks a C ertificate of Appealability (COA) following two

habeas petitions under 28 U .S.C. § 2255. Trinnaman proceeds pro se, so we

construe his pleadings liberally. Cummings v. Evans, 161 F.3d 610, 613 (10th

Cir. 1998). W e will issue a CO A “only if the applicant has made a substantial




      *
        This order and judgment is not binding precedent except under the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).
      **
         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.
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Finding

no constitutional rights w ere denied Trinnaman, we DENY his request for a COA

and DISM ISS the appeal.

                                  I. Background

      After pleading guilty to one count of felon in possession of a firearm,

Trinnaman w as sentenced to 57 months in prison and ordered to participate in a

drug treatment program on September 14, 2004. He did not appeal that

conviction or sentence. But in August of 2005 he filed a habeas petition under 28

U.S.C. § 2255 to vacate, set aside, or correct his sentence based on five

arguments: 1) he received ineffective counsel, 2) his sentence violated the Due

Process Clause of the Fifth Amendment and his right to jury trial under the Sixth

Amendment by including prior convictions in the calculation, 3) the district court

erroneously relied on the pre-sentence report (PSR ) in establishing his prior

convictions qualified as violent felonies, 4) ineffective counsel created a Fourth

Amendment issue, and 5) his sentence should be corrected to reflect time served.

      Ruling in D ecember of 2005, the district court ordered Trinnaman’s

sentence corrected so the federal sentence ran concurrently with the state

sentence. It denied any further habeas relief though, finding Trinnaman’s other

arguments of insufficient merit. Trinnaman then filed a Rule 59(e) motion to

amend the court’s ruling. Trinnaman pointed to a sentencing calculation error

made by his counsel when she requested a downward departure for Trinnaman

                                         -2-
during the sentencing stage. Trinnaman had already raised the calculation error in

a filing titled “Response to Government’s Response,” but the district court did not

address the issue in its December 2005 ruling. W hen the calculation error was

raised again in Trinnaman’s motion to amend, the district court treated the motion

to amend as a successive § 2255 habeas petition and dismissed for lack of a COA.

      Trinnaman seeks a COA to review 1) the calculation error, 2) all August

2005 habeas petition claims denied by the December 2005 ruling, and 3) the

Bureau of Prisons’ failure to grant the sentencing correction mandated by the

December order.

                                   II. Discussion

A. Calculation Error

      Trinnaman’s counsel requested a downward departure for her client during

the sentencing process. Her memorandum concluded:

      For the foregoing reasons, the Defendant respectfully requests that this
      Court grant him a downward departure from the Sentencing Guidelines
      based on the over-representation of his criminal history, and his
      exceptional family circumstances. Accordingly, his criminal history
      category should be a IV with a base offense level of 20, minus 3 for
      acceptance, for a final offense level of 17, for a sentencing range of 46-
      57 months.

R. at Document 12-1, page 14 of 14.

      Counsel, however, misread the Sentencing Guidelines. An offense level of

17 with a criminal history category of IV equates to a sentencing range of 37-46

months, not 46-57 months. Construing his petition liberally, Trinnaman argues

                                         -3-
that 1) his counsel invited error sufficient to amount to ineffective counsel, or 2)

his due process rights w ere violated. Either violation would be constitutionally

sufficient to grant a COA.

      The PSR offered a different recommended sentence then Trinnaman’s

counsel, however. It suggested an offense level of 21 with a criminal history

category of VI and no downward departure for a sentencing range of 77 to 96

months. The sentencing judge took a middle route, granting a downward

departure and sentencing Trinnaman to 57 months— higher than that requested by

counsel but lower than that suggested by the PSR.

      If the sentencing judge relied on the miscalculation of Trinnaman’s counsel

in reaching the final sentence, Trinnaman might deserve a CO A to determine

whether constitutional error existed. But to establish an ineffective counsel

claim, a defendant must show that the counsel’s performance was significantly

“deficient and that he was prejudiced by that deficiency.” United States v.

Kennedy, 225 F.3d 1187, 1197 (10th Cir. 2000) (citing Strickland v. Washington,

466 U.S. 668, 687 (1984)). There is no indication in the record that the

sentencing judge relied upon the miscalculation proffered by Trinnaman’s

counsel.

      Nor can we say that Trinnaman w as denied due process. W e may not

review a district court’s discretionary decision to deny a downward departure or

its refusal to depart even further from the advisory guideline range than it already

                                          -4-
has. United States v. Chavez-Diaz, 444 F.3d 1223, 1228–29 (10th Cir. 2006). W e

can only review the imposed sentence for reasonableness. Id. In the case before

us, Trinnaman received a downward departure from the PSR recommendation,

just not a departure as far as he w ould have liked. He does not, however,

challenge the reasonableness of his sentence. Even if he did, there is nothing in

the record that indicates the scale of the judge’s departure was unreasonable.

      Trinnaman’s request for a COA to review the impact of the sentencing

miscalculation by his counsel is denied.

B. August 2005 H abeas Petition Claims

      W e also deny the claims presented by Trinnaman’s first § 2255 habeas

petition for the same reasons as the district court. First, Trinnaman’s ineffective

counsel claims are unpersuasive. He argues that his counsel (1) failed to call a

key witness, and (2) should have argued for a downward departure based on the

“lesser harms” provision of the Sentencing Guidelines. 1 The witness proffered

would only have repeated evidence already before the court, however, and

sufficient inconsistencies existed in Trinnaman’s story about purchasing the rifle,

from which his conviction stems, for his son as a hunting rifle that refusing to

make the “lesser harms” argument was not unreasonable on counsel’s behalf.



      1
        The lesser harms provision arises in § 5K2.11 of the Guidelines, which
explains that a reduced sentence might be warranted where “conduct may not
cause or threaten the harm or evil sought to be prevented by the law proscribing
the offense at issue.”

                                           -5-
      Second, his Fifth and Sixth Amendment arguments regarding the use of

prior convictions at sentencing fall flat because he neither previously disputed his

prior felony convictions nor does the use of such convictions at sentencing

require proof by a jury beyond a reasonable doubt, see United States v. Booker,

543 U.S. 220, 244 (2005) (requiring proof by a jury beyond a reasonable doubt

for facts used to support a sentence except for prior convictions).

      Third, Trinnaman’s reliance on Shepard v. United States, 544 U.S. 13

(2005), for the proposition that the district court erred in relying upon the PSR to

establish his prior convictions as violent crimes is misplaced. Shepard made it

improper to rely on a PSR when it was unclear whether a prior conviction

qualified as a violent crime or not. In this case, there is no ambiguity about

whether Trinnaman’s prior robbery convictions qualify as crimes of violence.

The Sentencing Guidelines make it clear that robbery qualifies. USSG § 4B1.2

cmt. n.1 (2005) (defining robbery as a crime of violence).

      Finally, Trinnaman concedes his Fourth A mendment argument requires a

finding of ineffective counsel. As w e did not find ineffective counsel above, his

Fourth A mendment argument fails.

      As to Trinnaman’s argument that he receive credit for time served in state

court, the district court agreed and issued an order granting the relief.

C. Bureau of Prisons’ Failure to Follow December Order




                                          -6-
       Trinnaman has provided no evidence in the record that the Bureau of

Prisons has not followed the district court directive mandating his sentence be

corrected to reflect the federal and state sentences are to run concurrently. If the

Bureau of Prisons has failed to follow that order, Trinnaman must offer evidence

of that failure to the district court to obtain any relief.

                                    III. Conclusion

       Based on the record before us, we DENY the petition for a COA on all of

Trinnaman’s claims.

                                                        Entered for the Court

                                                        Timothy M . Tymkovich
                                                        Circuit Judge




                                            -7-
