                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 October 29, 2015
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                     No. 15-6056
                                             (D.C. Nos. 5:14-CV-00798-HE and
 BRIAN HEATH COLLINS,                              5:12-CR-00076-HE-1)
                                                      (W.D. of Okla.)
              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before TYMKOVICH, Chief Judge, HARTZ, and MORITZ, Circuit Judges. **


      Brian Collins pleaded guilty, pursuant to a plea agreement, to one count of

manufacturing 50 grams or more of methamphetamine, in violation of 21 U.S.C.

§ 841(a)(1), and was sentenced to 168 months in prison. On direct appeal, we

affirmed and the Supreme Court denied a writ of certiorari. Collins, pro se, then

sought habeas relief pursuant to 28 U.S.C. § 2255 asserting, as relevant here,


      *
         This order and judgment is not binding precedent except under the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.
      **
         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.
ineffective assistance of counsel on two grounds. The district court granted a

certificate of appealability (COA) on one ground: that his attorney essentially

abandoned him and failed to correct errors in the presentence investigation report

(PSR), but ultimately denied the habeas motion on all grounds.

      Collins appeals, arguing that he suffered prejudice as a result of his

attorney’s lack of communication. He also seeks a COA on the second ineffective

assistance of counsel claim, that his attorney misrepresented the consequences of

his guilty plea.

        Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district

court’s denial of Collins’s § 2255 motion and decline to issue a COA.

                               I. BACKGROUND

      Brian Collins was indicted on two counts of manufacturing and distributing

methamphetamine, both in violation of 21 U.S.C. § 841(a)(1). The court

appointed counsel to represent Collins because he was indigent. Collins was then

offered a plea deal by the government, and counsel later spent about thirty

minutes reviewing the plea agreement with Collins. Pursuant to the agreement,

Collins pleaded guilty to the manufacturing count and the distribution count was

dismissed.

      The resulting PSR classified Collins as a career offender. This

enhancement affected his guidelines range in two ways. First, the offense level

was increased from 30 to 34, because the Guidelines, USSG § 4B1.1(b), directs

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the use of whichever offense level is higher between the normal computation and

the career offender enhancement. Second, the criminal history category was

increased from V to VI, because USSG § 4B1.1(b) specifies that a career

offender’s criminal history category is always VI. In the sentencing

memorandum, counsel wrote that the pre-enhancement range should have been 84

to 104 months. The post-enhancement sentencing range was 188 to 235 months

(though the PSR erroneously recommended 168 to 210 months).

      At the sentencing hearing, counsel argued for a below-guidelines sentence.

The district court heard from Collins and then addressed the statutory factors. In

imposing the 168-month sentence, the court concluded:

              The ultimate question here, of course, is how long he should be
              incarcerated in the circumstances here. It does appear to me that
              there needs to be a substantial sentence in this case, but I think
              in terms of the overall circumstances, particularly, against the
              backdrop of what, as I said earlier, were the unusual progression
              of tragedies that appear to have triggered the most recent
              activities by the defendant, I’m not persuaded that a sentence
              fully within the guideline range is necessary, although I do think
              there needs to be a substantial sentence here.

              What I’m going to do is sentence the defendant to 168 months in
              the custody of the Bureau of Prisons. That is a substantial
              sentence, and is the bottom of the guideline range which would
              have applied earlier had we not had the career offender situation
              that was affecting both the offense level and the criminal history
              category. 1 But it does seem to me that that is a substantial
              enough sentence in this case to accomplish the statutory
              objectives of sentencing.

      1
          In fact, under the PSR, the low-end sentence would have been 120
months.

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R., Vol. III at 39–40.

                                II. DISCUSSION

      Collins contends the district court erred in assessing his counsel’s conduct

at both the sentencing and plea bargain stages. We reject both arguments.

      A. Sentencing

      Collins’s primary argument asserts that counsel was ineffective during

sentencing because he should have done two things: first, counsel should have

argued for a lower criminal history (IV) and offense level (28) calculation to yield

a lower unenhanced sentencing range; and second, he should have used that lower

calculation to argue that the career offender enhancement was excessive and

unwarranted. The district court granted a COA. It found that counsel was

constitutionally deficient due to his failure to communicate, especially regarding

the PSR. The court then denied relief because Collins did not show prejudice, in

other words, that, but for counsel’s errors, the court would have given a lower

sentence.

      “When reviewing a district court’s denial of a § 2255 petition, we review

questions of law de novo and questions of fact for clear error.” United States v.

Harms, 371 F.3d 1208, 1210 (10th Cir. 2004) (citation omitted). To establish

ineffective assistance of counsel, the defendant must demonstrate that counsel’s

deficient performance prejudiced his case, meaning that but for counsel’s

deficient performance, he would likely have received a lower sentence. United

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States v. Washington, 619 F.3d 1252, 1262 (10th Cir. 2010). This likelihood must

be “substantial, not just conceivable.” United States v. Rushin, 642 F.3d 1299,

1310 (10th Cir. 2011) (quoting Harrington v. Richter, 562 U.S. 86, 112 (2011)

(citation omitted)).

      We agree with the district court that Collins has failed to establish

prejudice. First, in the sentencing memorandum, counsel did present the exact

pre-enhancement guidelines range that Collins requested (84 to 104 months). 2

Collins argues that the presentation was not argumentative enough. But Collins’s

burden is higher than establishing a possibility that a more emphatic argument

might have yielded a lower sentence; he must establish a substantial likelihood

that a lower sentence would have resulted.

      Second, even if counsel had emphasized that lower range, Collins cannot

show it is substantially likely that his sentence would have been reduced. He

argues that the district court had a “desire” to impose a sentence at the bottom of

the guidelines range as if the career offender provisions did not apply. But more

likely, the court intended to emphasize that 168 months was appropriate given the

many § 3553 factors it referenced during sentencing: the serious nature of the

crime, defendant’s lengthy criminal history, defendant’s life circumstances,

      2
         “But for the calculation as a Career Offender, Mr. Collins [sic] range of
punishment under the guidelines would be 84 to 104 months. This range is based
on an initial criminal offense level of 28 subtracting 3 points for acceptance of
responsibility and a Criminal History of IV (8 criminal history points).” R., Vol.
I at 103–04.

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deterrence, and protection of the public. It said that though there needed to be a

“substantial sentence,” given the recent life tragedies of the defendant, it was “not

persuaded that a sentence fully within the guideline range is necessary.” R., Vol.

III at 39–40.

      Even if the district court specifically intended to impose the bottom-end

sentence as if the career offender enhancement did not apply, Collins cannot show

with a substantial likelihood that his counsel’s greater emphasis on a pre-

enhancement range of 84 to 104 months (versus the PSR range of 120 to 150

months) would have resulted in a greater downward departure. His actual

sentencing range of 188 to 210 months was correctly calculated, and the district

court then chose a sentence of 168 months. Changing the low end of an

inapplicable guidelines range might have affected the court’s decision, but Collins

cannot prove a substantial likelihood that it would have.

      Collins points to United States v. Fernandez, 436 F. Supp. 2d 983 (E.D.

Wis. 2006), to argue that when counsel failed to push for a lower pre-

enhancement range, Collins was prejudiced because the court did not have the

opportunity to consider the drastic increase that the career offender provision

imposed. But Fernandez is not persuasive. There, the court concluded that the

career offender increase would conflict with the purposes of sentencing under 18

U.S.C. § 3553(a). Fernandez, 436 F. Supp. 2d at 984. Here, the court first

addressed the statutory factors and concluded there “needs to be a substantial

                                         -6-
sentence,” though not one “fully within the guideline range.” R., Vol. III at

39–40. It then concluded that 168 months would “accomplish the statutory

objectives of sentencing.” Id. at 40. We decline to find prejudice here because

even if counsel had pointed to an uncontestedly inapplicable guidelines range

more emphatically and cited a non-binding, fact-specific case, Collins has not

proven that he likely would have received a lower sentence.

      B. Plea agreement

      Collins’s second argument is that counsel was ineffective because he

materially misrepresented the consequences of the plea agreement. Collins does

not dispute that his criminal history properly categorizes him as a career offender.

But he does assert that his counsel led him to believe that the career offender

enhancements would not apply under the plea deal.

      The district court did not grant a COA on this ground. It found that Collins

had not established “blatant and significant misrepresentations,” Mendoza v.

Hatch, 620 F.3d 1261, 1272 (10th Cir. 2010), but rather that the evidence showed

only a misunderstanding. Even if misrepresentations existed, the district court

said Collins could not establish prejudice “[c]onsidering the benefits defendant

received by pleading guilty and the lack of any indication that he likely would

have succeeded at trial[.]” R., Vol. I at 171.

      We issue a COA “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To satisfy this

                                          -7-
standard, Collins must show that “reasonable jurists could debate whether the

§ 2255 motion should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further.” United

States v. Zamora-Marquez, 565 F. App’x 695, 697 (10th Cir. 2014) (alterations

and citation omitted). We agree with the district court and deny a COA.

      “In the guilty plea context, to establish a claim for ineffective assistance of

counsel, a 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). “Material misrepresentations,” but not mere

miscalculations, can rise to constitutionally deficient performance. United States

v. Gonzalez, 209 F. App’x 842, 845 (10th Cir. 2006). Collins seems to concede

that he cannot prove misrepresentations, and instead argues that the

misunderstanding resulted from a significant deficiency in communication. This

argument was not presented to the district court and Collins has not demonstrated

that reasonable jurists would have addressed the material misrepresentations issue

differently.

                               III. CONCLUSION

      For the foregoing reasons we AFFIRM the denial of the § 2255 motion on

Collins’s ineffective assistance challenge regarding sentencing, DENY a COA on




                                         -8-
his ineffective assistance challenge regarding the guilty plea, and DISMISS his

appeal.

                                              ENTERED FOR THE COURT

                                              Timothy M. Tymkovich
                                              Chief Judge




.




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