                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      June 21, 2006
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court


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

               Plaintiff-Appellee,                      No. 05-3422
          v.                                          District of Kansas
 ED GAR N UÑEZ-FUEN TES,                         (D.C. No. 05-CV-3197-M LB)

               Defendant-Appellant.



                                      OR DER *


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      Edgar Nuñez-Fuentes, a federal prisoner proceeding pro se, seeks a

certificate of appealability (COA) that would allow him to appeal the district

court’s order denying his habeas corpus petition under 28 U.S.C. § 2255. See 28

U.S.C. § 2253(c)(1)(B). Because we conclude that M r. Nuñez-Fuentes has failed

to make “a substantial showing of the denial of a constitutional right,” we DEN Y

his request for a COA and dismiss the appeal. 28 U.S.C. § 2253(c)(2).




      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
                                  I. Background

      M r. Nuñez-Fuentes pleaded guilty to felony conspiracy to distribute

methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. In his plea

agreement, M r. Nuñez-Fuentes waived his right to appeal and to collaterally

attack his conviction and sentence, including motions brought under 28 U.S.C. §

2255, except as limited by United States v. Cockerham, 237 F.3d 1179, 1187

(10th Cir. 2001). The district court accepted the plea and sentenced him to 135

months’ imprisonment, to be followed by five years of supervised release.

Judgment was entered on August 16, 2004. Pursuant to the plea agreement, M r.

Nuñez-Fuentes did not file a direct appeal.

      On April 6, 2005, M r. Nuñez-Fuentes filed a motion to vacate the judgment

of the district court under 28 U.S.C. § 2255, claiming ineffective assistance of

counsel and challenging the validity of the plea agreement. In his petition, M r.

Nuñez-Fuentes argued that his plea agreement was the result of ineffective

assistance of counsel because counsel (1) allowed the plea agreement to be based

on a different quantity of drugs than was originally included in the indictment,

and failed to object to an alleged miscalculation of the base offense level; (2)

failed to request downward departures based on the defendant’s extraordinary

family circumstances; (3) allowed for the inclusion of a five-year period of

supervised release in the plea agreement even though, according to M r. Nuñez-

Fuentes, the district court had no jurisdiction to impose supervised release; and

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(4) failed to secure “safety valve” credit for which M r. Nuñez-Fuentes was

eligible under U.S.S.G. § 5C1.2. The district court rejected each of M r. Nuñez-

Fuentes’s arguments and denied the motion. M r. Nuñez-Fuentes then filed an

application for a COA in this Court. Because M r. Nuñez-Fuentes’s’ ineffective

assistance claim challenges the validity of his plea, it falls outside the waiver of

post-conviction rights in the plea agreement. See Cockerham, 237 F.3d at 1187.

                                          II.

      The denial of a motion for relief under § 2255 may be appealed only if the

district court or this Court first issues a COA. 28 U.S.C. § 2253(c)(1)(B). A

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

denial of a constitutional right.” Id. § 2253(c)(2). In order to make such a

showing, a petitioner must demonstrate that “reasonable jurists could debate

whether . . . 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. M cDaniel, 529 U.S. 473, 483-84 (2000) (internal quotation marks

omitted).

      In order to establish an ineffective assistance claim sufficient to warrant

reversal of a conviction or a sentence, a convicted defendant must show both that

counsel’s performance was so seriously deficient as to fall below an objective

standard of reasonableness, and that “the deficient performance prejudiced the

defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). The ultimate

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question, according to the Supreme Court, is “whether counsel’s conduct so

undermined the proper functioning of the adversarial process that the

[proceedings] cannot be relied on as having produced a just result.” Id. at 686.

A. Discrepancy Between the Indictm ent and the Plea Agreem ent

      M r. Nuñez-Fuentes first argues that his counsel was ineffective because the

plea agreement was based on a higher quantity of drugs than was specified by the

indictment. The indictment charged him with conspiracy to distribute

“approximately two (2) pounds” of methamphetamine, R. Doc. 23, p. 1, whereas

the plea agreement and the petition to plead guilty both specified 1,183, or

roughly 2.6 pounds, of a mixture or substance containing a detectable amount of

methamphetamine. In a sentencing regime w here Guideline ranges may vary

dramatically on the basis of a few grams of narcotics, such a discrepancy could,

in some cases, have a significant effect on a defendant’s sentence. In this case,

however, the base offense level would have been the same w hether the plea

agreement was based on 1,183 grams or two pounds (approximately 907 grams) of

methamphetamine. See U.S.S.G. 2D1.1(c)(2) (specifying a base offense level of

36 for offenses involving “at least 500 grams but less than 1.5 kilograms of

methamphetamine (actual).”). Thus, M r. Nuñez-Fuentes has not made a

substantial showing that the discrepancy between the indictment and the plea

agreement had a prejudicial effect on his sentence.




                                         -4-
         M r. Nuñez-Fuentes also argues that his base offense level should have been

32 rather than 36, based on the quantity of the methamphetamine involved in his

offense. This calculation stems from a misreading of the Guidelines. Under N ote

B to U.S.S.G. § 2D1.1(c), courts are instructed to “use the offense level

determined by the entire weight of the mixture or substance [containing

methamphetamine], or the offense level determined by the weight of the . . .

methamphetamine (actual), whichever is greater.” According to the record, the

1,183 grams of methamphetamine involved in the defendant’s case was of 70%

purity. Therefore the actual quantity in the plea agreement was approximately

828 grams, and the actual quantity charged in the indictment was approximately

635 grams, both of which fall w ell w ithin the range for a base offense level of 36.

See U.S.S.G. § 2D1.1(c)(2). Thus, M r. Nuñez-Fuentes’s counsel could not have

been ineffective for failing to object to the court’s calculation of the base offense

level.

B. Extraordinary Fam ily Circum stances

         M r. Nuñez-Fuentes also claims that his counsel was ineffective because she

failed to request downward departures for w hich he was eligible due to his

“extraordinary family circumstances” and because of his pending deportation. The

district court found that M r. Nuñez-Fuentes’s family circumstances fall well below

the “extraordinary” threshold that would entitle him to a downward departure, and

we find nothing in the record suggesting otherw ise.

                                           -5-
      M r. Nuñez-Fuentes relies primarily on a case from the Eastern District of

W isconsin, which he interprets as holding that when a defendant’s family resides

in the United States, and he will be deported following his release from prison, he

is entitled to a three-level downward departure. See United States v. Ferreria, 239

F. Supp. 2d 849, 852 (E.D. W is. 2002). W e do not interpret Ferreria as adopting

such a per se rule. The decision merely shows one possible outcome for such a

case in the Seventh Circuit, where district courts are free to consider a downward

departure if a defendant suffers “unusual or exceptional hardship in his conditions

of confinement” as a result of his status as a deportable alien. United States v.

Farouil, 124 F.3d 838, 847 (7th Cir. 1997). The Seventh Circuit’s case law does

not support the rule that sentencing courts must award departures every time the

defendant is a deportable alien. See United States v. Gallo-Vasquez, 284 F.3d 780,

785 (7th Cir. 2002). Unlike the Seventh Circuit, this Court has not decided

whether a defendant’s status as a deportable alien may justify a departure when it

creates an unusual or exceptional hardship in the conditions of a defendant’s

confinement. Even if it had, M r. Nuñez-Fuentes has failed to establish any such

hardship. Accordingly, his counsel was not ineffective for failing to seek a

downw ard departure on that basis.

C. Supervised Release

      M r. Nuñez-Fuentes also argues that his counsel was ineffective because she

allowed the plea agreement to include a five-year term of supervised release,

                                          -6-
which he claims the district court lacked jurisdiction to impose. This argument,

however, is contradicted by the language of 21 U.S.C. § 841(b)(1)(A), which not

only authorizes but requires the district court to impose a five-year term of

supervised release in this case. Contrary to M r. Nuñez-Fuentes’s elaborate theory

concerning a sequence of amendments to the statute during the mid-1980’s, the

codification at 21 U.S.C. § 841(b)(1) is an accurate rendition of the relevant

portion of the Anti-Drug Abuse Act of 1986, § 1002, Pub. L. No. 99-570, 100 Stat.

3207 (enacted October 1986). Thus, M r. Nuñez-Fuentes has failed to make a

substantial showing that his counsel was ineffective with respect to the inclusion

of supervised release in the plea agreement.

D. “Safety Valve” Credit

      Finally, we turn to M r. Nuñez-Fuentes’s claim that counsel was ineffective

for failing to secure “safety valve” sentence credit under U.S.S.G. § 5C1.2. The

district court found that the defendant was not eligible for credit, based on

information from a case agent’s affidavit and an assistant U.S. attorney’s

statement that M r. Nuñez-Fuentes had not been truthful during his debriefing with

government agents. Out of “an abundance of caution,” the court allowed M r.

Nuñez-Fuentes to respond to the affidavit, which detailed a number of

inconsistencies in his statements to the government. W e have reviewed the record,

including M r. Nuñez-Fuentes’s response to the affidavit, and we agree with the

district court that the defendant did not adequately account for his untruthful

                                          -7-
statements, especially with respect to his statements regarding the

methamphetamine and heroin. As the district court observed, M r. Nuñez-

Fuentes’s “response essentially is that his failure to tell the truth just was not

important.” R. Doc. 98, at 3. Thus, as with the other claims of ineffective

assistance, we hold that M r. Nuñez-Fuentes has failed to make a substantial

showing that his counsel’s performance was constitutionally deficient.

      Accordingly, we D EN Y Edgar Nuñez-Fuentes’s request for a COA and

DISM ISS this appeal.

                                                 Entered for the Court,

                                                 M ichael W . M cConnell
                                                 Circuit Judge




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