                                                                                 F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                  MAR 29 2002
                                      TENTH CIRCUIT
                                                                              PATRICK FISHER
                                                                                       Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
 v.                                                             No. 01-2289
 ENRIQUE LAZCANO-VILLALOBOS,                         (D.C. No. CIV-00-610-MV/RLP,
 a.k.a. Lazcano Enriquez-Villalobos,                         CR-97-98-HB)
                                                            (D. New Mexico)
           Defendant - Appellant.




                                   ORDER AND JUDGMENT*


Before SEYMOUR, HENRY, and BRISCOE, Circuit Judges.


       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered

submitted without oral argument.

       Defendant Enrique Lazcano-Villalobos, a federal prisoner appearing pro se, seeks

a certificate of appealability (COA) to appeal the district court's dismissal of his motion to


       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Because he has failed to

make a “substantial showing of the denial of a constitutional right” as required by 28

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

       In 1998, defendant was convicted by a jury of possession with intent to distribute

more than five kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1), and he was

sentenced to 108 months' imprisonment. His conviction was affirmed on appeal. See

United States v. Lazcano-Villalobos, 175 F.3d 838 (10th Cir. 1999).

       Defendant filed the present § 2255 motion on April 27, 2000, alleging ineffective

assistance of trial counsel and arguing that the sentencing guidelines were incorrectly

applied. On October 20, 2000, he filed a motion to amend to assert a claim based on

Apprendi v. New Jersey, 120 S. Ct. 2348 (2000). The magistrate court found defendant

failed to show counsel's performance was constitutionally ineffective or that he was

prejudiced by counsel's performance. The magistrate further determined that defendant

was sentenced within the guideline range for his base level offense and that, even if

Apprendi were applied retroactively, defendant's sentence did not exceed the statutory

maximum. The district court adopted the magistrate's report and recommendation and

dismissed the petition.

       Defendant claims deficient performance by his trial counsel based on failure to

provide defendant with a copy of the government's proposed plea agreement. He claims

he was unaware that the government proposed any type of plea agreement and he thought


                                             2
trial was his only option. However, the government attached an affidavit by defendant's

trial counsel to its response to defendant's § 2255 motion in the district court. Record,

Doc. 4, Exh. 1. In the affidavit, counsel stated he recommended pleading guilty and

communicated to defendant three separate plea offers proposed by the government.

Counsel stated that on each occasion, “Defendant rejected the government's offers,

insisting on his desire to go to trial to try and convince a jury of his innocence.” Id. at 2.

Further, defendant replied to the government's response by filing his own affidavit stating

that trial counsel “recommended I go to trial and not accept the proffered plea

agreement,” id., Doc. 6, but he also stated he never received a copy of the proffered plea

agreement. At a minimum, were we to review only defendant's statements, defendant was

clearly aware that a plea agreement had been proposed and counsel discussed it with him.

       The decision of whether to accept a plea agreement lies ultimately with the

defendant and cannot serve as a basis for an ineffective assistance of counsel claim. See

Fed. R. Crim. P. 11(d). The failure by counsel to inform his client of a plea proposal

proffered by the government could serve as a basis for an ineffective assistance of

counsel claim, but, by defendant's own admissions, counsel did not fail in that regard in

this case. As regards the question of whether the substance of the plea offers was

communicated to the defendant, the district court accepted defense counsel's

representations that the plea offers were communicated. It is immaterial if the documents

themselves were not given to defendant, as long as he was aware of their contents. While


                                               3
it may have been wiser for trial counsel to memorialize his exchanges with defendant

regarding plea negotiations, his failure to do does not rise to a substantial showing of a

constitutional violation.

       Defendant also claims his trial counsel was ineffective because he argued Fifth

Circuit case law on the issue of constructive possession in a joint occupancy situation.

His argument refers to his motion for acquittal at the close of the government's case-in-

chief. Trial counsel argued the government failed to prove that defendant knowingly

possessed the cocaine and that knowledgeable possession requires “circumstantial

evidence that is suspicious in nature or demonstrates guilty knowledge.” Lazcano-

Villalobos, 175 F.3d at 844 (quoting United States v. Anchondo-Sandoval, 910 F.2d

1234, 1236 (5th Cir. 1990)). In his direct appeal, we stated that “our requirement that the

government present direct or circumstantial evidence to show some connection or nexus

individually linking a defendant to the contraband, is sufficient to protect the interests of

the defendant in a joint occupancy situation.” Id. at 845. Further, “even if we applied the

Fifth Circuit's standard, we believe the circumstantial evidence is sufficiently 'suspicious

in nature' or demonstrates sufficient 'guilty knowledge' to support the district court's

denial of Mr. Lazcano-Villalobos' motion for acquittal and the jury's verdict.” Id.

Defendant has not shown how trial counsel's attempt to urge this court to apply a more

lenient standard to the issue of constructive possession was either ineffective or

prejudicial.


                                              4
      Defendant’s request for a certificate of appealability is DENIED and the appeal is

DISMISSED. The mandate shall issue forthwith.

                                               Entered for the Court

                                               Mary Beck Briscoe
                                               Circuit Judge




                                           5
