                                                                  FILED
                                                      United States Court of Appeals
                       UNITED STATES COURT OF APPEALS         Tenth Circuit

                                        TENTH CIRCUIT                  April 11, 2014

                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court

    UNITED STATES OF AMERICA,

                Plaintiff - Appellee,
    v.                                                      No. 13-4160
    STEVEN MICHAEL WELLS,                        (D.C. Nos. 1:12-CV-00256-DB and
                                                       1:08-CR-00008-DB-1)
                Defendant - Appellant.                       (D. Utah)




                                           ORDER 


Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.



         Mr. Steven Michael Wells pleaded guilty to unlawful possession of a

firearm under 18 U.S.C. § 922(g)(1). After sentencing, he moved for vacatur

under 28 U.S.C. § 2255, and the district court denied the motion. This ruling

prompted filings in both our court and the state district court. In our court, Mr.

Wells has appealed, applied for a certificate of appealability, and moved for leave





       The present order does not constitute binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. The order may
be cited, however, for its persuasive value.
to proceed in forma pauperis; in state district court, Mr. Wells moved for a new

trial. Based on that motion, he asks us to stay the briefing schedule.

      We grant leave to proceed in forma pauperis because Mr. Wells is indigent.

But we can entertain the appeal only if Mr. Wells is entitled to a certificate of

appealability. See 28 U.S.C. § 2253(c)(1)(B) (2012). Holding that he is not

entitled to a certificate, we dismiss the appeal and deny the motion for a stay.

                       Leave to Proceed in Forma Pauperis

      Mr. Wells lacks enough money to pay the filing fee. Thus, we grant his

application for leave to proceed in forma pauperis.

                    Standard for a Certificate of Appealability

      To obtain a certificate of appealability, Mr. Wells must make “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012).

This showing exists only if “reasonable jurists could debate whether (or, for that

matter, agree that) 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) (quoting Barefoot v.

Estelle, 463 U.S. 880, 893 n.4 (1983)).

             Mr. Wells’s Arguments for a Certificate of Appealability

      In his § 2255 motion, Mr. Wells claimed that the probation office and

district judge had erroneously calculated the guideline range and that defense


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counsel should have objected to the calculations. In the appeal, Mr. Wells

narrows his argument, stating that the district court should have calculated the

criminal history score as 11, rather than 20. Mr. Wells adds that if he had known

that he was subject to a lower criminal history score (with a lower guideline

range), he would have declined the plea offer and held out for a better one. This

argument would be rejected by any reasonable jurist.

      The underlying claim involves ineffective assistance of counsel. For this

claim, Mr. Wells must show that his attorney’s failure to object to the guideline

calculations was deficient and prejudicial. See United States v. Rushin, 642 F.3d

1299, 1302 (10th Cir. 2011).

      A jurist applying this standard would examine Mr. Wells’s complaints

about the district court’s guideline calculation. Mr. Wells complains that the

court incorrectly included:

      ●      seven points for five “Class B” misdemeanors and

      ●      two points for two third-degree felonies.

Appellant’s Appl. for a Cert. of Appealability at 2 (Jan. 24, 2014). Though he

states these offenses shouldn’t count, he does not say why they wouldn’t. But

Mr. Wells is pro se; thus, we liberally construe his application for a certificate of

appealability. See Hall v. Scott, 292 F.3d 1264, 1266 (10th Cir. 2002) (“Because




                                          3
Hall has filed his application for a COA pro se, we construe his petition

liberally.”).

       In liberally construing the application, we look to the entirety of the

document. Mr. Wells apparently bases his argument on U.S. Sentencing

Guideline § 1B1.9 and § 4A1.2, for a copy of § 1B1.9 is included in the

application and both sections were invoked in the district court. Appellant’s

Appl. for a Cert. of Appealability at 2(A) (Jan. 24, 2014); R. vol. 1, at 6. He

misreads both sections, as the district court explained.

       In the § 2255 motion, Mr. Wells argued that under § 1B1.9, “Class A, Class

B, and infractions are not used for Criminal History Points.” R. vol. 1, at 6. This

argument reflects confusion over the guidelines. Section 1B1.9 does not address

criminal history; instead, this section addresses the applicability of the guidelines

to the present conviction. Under § 1B1.9, the guidelines do not apply to Class B

and Class C misdemeanors. See U.S. Sentencing Guidelines Manual § 1B1.9

(2011). But this provision does not apply because Mr. Wells’s underlying

conviction was unlawful possession of a firearm, which was not a misdemeanor. 1

       Because § 1B1.9 does not apply, we look elsewhere in the guidelines to

determine if the five prior misdemeanor convictions would count toward the

criminal-history points. In § 4A.2(c), the guidelines provide that “[s]entences for
1
       Conviction under § 922(g) was punishable by imprisonment up to ten years. See
18 U.S.C. § 924(a)(2) (2006). With a maximum of at least ten years, the offense was a
“Class C felony.” 18 U.S.C. § 3559(a)(3) (2006).
                                           4
misdemeanor[s] . . . are counted” unless an exception applies. See U.S.

Sentencing Guidelines Manual § 4A1.2(c) (2011). And, Mr. Wells does not

suggest an exception applies. Thus, the district court did not err in counting the

five prior misdemeanor convictions.

      Mr. Wells also states that two third-degree felony convictions 2 were

erroneously included in the criminal-history calculation. In his § 2255 motion, he

argued that: (1) the two convictions wouldn’t count separately because the

sentences were concurrent, and (2) each offense had accounted for 3 points but

should have totaled 3 points “between them.” R. vol. 1, at 6-7. Then, in his reply

brief, he changed the argument. There he contended that each of the 1999

convictions should have been assessed 2 points, rather than 3. Id. at 49.

      In the appeal, Mr. Wells apparently renews the position he had taken in the

reply brief filed in district court: that each of the 1999 convictions should have

been assessed 2 points, not 3. Appellant’s Appl. for a Cert. of Appealability at 2

(Jan. 24, 2014).



2
      These convictions consisted of:

      ●      possession with intent to distribute a controlled substance (Mar. 30, 1999)
             and

      ●      illegal possession/use of a controlled substance (Dec. 16, 1999).

Appellant’s Appl. for a Cert. of Appealability at 2 (Jan. 24, 2014); see R. vol. 3, at 47-
48.
                                         5
          This position is untenable under the guidelines. When the sentence

involves imprisonment for more than 13 months, the guidelines require an

assessment of 3 points. See U.S. Sentencing Guidelines Manual § 4A1.1(a)

(2011). When the sentence is between 60 days and 13 months, 2 points are

assessed. See id. § 4A1.1(b).

          Presumably, Mr. Wells believes that each conviction should account for 2

points, rather than 3, because the judge sentenced him to 180 days in the first

case and suspended the sentence in the second one. R. vol.3, at 47-48. If this is

Mr. Wells’s thinking, however, it would not take into account what happened

later.

          In both cases, the court revoked probation and resentenced Mr. Wells on

November 28, 2000, to imprisonment for 0-5 years. Id. For an indeterminate

sentence of 0-5 years, the term of imprisonment is considered 5 years under the

guidelines. U.S. Sentencing Guidelines Manual § 4A1.2 appl. note 2 (2011). The

5-year term exceeds the 13-month threshold required for a criminal-history score

of 3. 3

3
      In both cases, Mr. Wells obtained parole on the indeterminate sentence and
had the parole revoked twice. R. vol. 3, at 47-48. With the first revocation, Mr.
Wells was reincarcerated an additional 133 days; with the second revocation, he
was reincarcerated an additional 273 days. Id. Thus, in both cases, Mr. Wells
was imprisoned a total of 406 days after revocation of his parole.

      When parole is revoked, the guidelines require the court to assess the
criminal-history score by “add[ing] the original term of imprisonment to any term
                                         6
      Defense counsel had little reason to object to the scoring of the 1999

convictions. If counsel had objected, the court would likely have overruled the

objection because it would have been invalid. Accordingly, the attorney did not

act deficiently and his conduct did not prejudice Mr. Wells. In these

circumstances, any reasonable jurist would reject the ineffective-assistance claim

based on the scoring of the two convictions in 1999.

                                    Disposition

      We grant the application for leave to proceed in forma pauperis. But, we

conclude that Mr. Wells has not made a substantial showing of the denial of a

constitutional right. Thus, we deny his request for a certificate of appealability

and dismiss the appeal. In light of this dismissal, we deny Mr. Wells’s request

for a stay.


                                       Entered for the Court



                                       Robert E. Bacharach
                                       Circuit Judge




of imprisonment imposed upon revocation.” U.S. Sentencing Guidelines Manual
§ 4A1.2(k) (2011). Thus, these 406 days are added to any other periods of
imprisonment under the guidelines. Because 406 days exceed 13 months, each of
the 1999 convictions would be assessed 3 points even without consideration of
the indeterminate sentences of 0-5 years.
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