                                                                                  F I L E D
                                                                           United States Court of Appeals
                                                                                   Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                    TENTH CIRCUIT                                  DEC 22 1998

                                                                              PATRICK FISHER
                                                                                        Clerk
 UNITED STATES OF AMERICA,

               Plaintiff-Appellee
                                                           Nos. 98-5086, 98-5131
 v.
                                                           (D.C. 94-CR-27-5-B
 JOSE A. GARCIA,                                               & 97-CV-162-B)
                                                      (Northern District of Oklahoma)
               Defendant-Appellant.


                               ORDER AND JUDGMENT*


Before PORFILIO, KELLY, and HENRY, Circuit Judges.



       Jose A. Garcia, a federal prisoner proceeding pro se, seeks to appeal the district

court’s order denying his motion to set aside, vacate, or modify sentence, filed pursuant to

28 U.S.C. § 2255. Because Mr. Garcia has failed to make a substantial showing of the

denial of a constitutional right, we deny his request for a certificate of appealability and

dismiss this appeal.1


       *
               This order and judgment is not binding precedent, except under the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.
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             After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
                                    I. BACKGROUND

       The facts surrounding this case are set forth in detail in our prior opinion, see

United States v. Garcia, 78 F.3d 1457, 1460-62 (10th Cir. 1996), and we summarize them

briefly here. In June 1994, a grand jury returned an indictment charging Mr. Garcia with

conspiracy to distribute cocaine and marijuana and with the distribution of cocaine. The

government and Mr. Garcia entered into a plea agreement under which the government

agreed to dismiss the conspiracy count in exchange for Mr. Garcia’s plea of guilty on the

substantive count charging the distribution of cocaine. The plea agreement provided that

the sentence to be imposed would “remain in the total discretion of the trial court judge”

and that Mr. Garcia would face a maximum sentence on the distribution count of twenty

years’ imprisonment, up to a one million dollar fine, at least three years’ supervised

release, and a $50.00 special assessment. See Garcia, 78 F.3d at 1460.

       Prior to sentencing, the government and Mr. Garcia agreed that the quantity of

drugs that would be used in calculating the base offense level on the distribution charge

would be approximately 100 grams and would not exceed 500 grams. Mr. Garcia

admitted that he had delivered 1 ½ ounces of cocaine to Doug McGowan, a convicted

drug offender operating as a government informant. The district court accepted Mr.

Garcia’s plea of guilty to the distribution count but reserved its determination of whether

the plea agreement adequately reflected the seriousness of the offense.




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       During the presentence investigation, Mr. McGowan and Amy Stickman, another

government informant, told the probation officer that Mr. Garcia had delivered much

more cocaine to them that he had admitted during the plea proceedings. They also stated

that Mr. Garcia had directed them in drug activity and had possessed a firearm in

connection with his drug business. Based on these statements, the probation officer

concluded that Mr. Garcia had committed a Class B felony offense for which the

sentencing range was between five and forty years.

       Both the government and Mr. Garcia objected to the drug quantity determinations

in the presentence report. The district court then held a hearing at which both government

informants testified. The informants’ testimony was consistent with their statements to

the probation officer about Mr. Garcia’s drug activities.

       The district court found the informants credible. It concluded that Mr. Garcia was

involved in distributing 499 grams of cocaine and sentenced him to seventy-two months’

imprisonment, three years’ supervised release, and a $2,000 fine. This court affirmed Mr.

Garcia’s sentence on direct appeal. See Garcia, 78 F.3d at 1462-1469.

       Mr. Garcia then filed the instant § 2255 motion, advancing the following

arguments: (1) that his sentence violated his right to equal protection; (2) that the

government breached the plea agreement by allowing the court to sentence him to a

period of imprisonment greater than twelve to eighteen months; (3) that the district court

erred in applying the Sentencing Guidelines by increasing the offense level on the basis of


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his leadership role and because of his possession of a firearm during a drug transaction;

(4) that the district court erred in relying on parts of the presentence report that were not

supported by any evidence; (5) that the court violated Fed. R. Crim. P. 32; and (6) that he

received ineffective assistance of counsel in violation of the Sixth Amendment.

       The district court rejected each of these arguments. It found that Mr. Garcia’s

ineffective assistance of counsel claim was without merit and that his other arguments

were barred either because they could have been raised by Mr. Garcia on direct appeal or

because they had actually been raised and decided in the direct appeal. The court then

denied Mr. Garcia’s application for a certificate of appealability.



                                     II. DISCUSSION

       In his appellate brief, Mr. Garcia advances the following arguments: (1) that he

received ineffective assistance of counsel because his attorney did not realize that the

court might impose a sentence longer than contemplated by the plea agreement and

because his attorney failed to challenge the evidence relied on by the court in imposing

the sentence; (2) that the district court based its sentencing decision on unreliable

evidence; (3) that certain government witnesses were improperly offered matters of value

in exchange for their testimony; and (4) that the prosecution failed to disclose exculpatory

evidence. We agree with the district court that Mr. Garcia has failed to make a

substantial showing of the denial of a constitutional right as to any of these claims.


                                              4
       With regard to Mr. Garcia’s ineffective assistance of counsel claim, we note that

Mr. Garcia must establish that his counsel’s performance was deficient and that the

deficient performance was prejudicial. Strickland v. Washington, 466 U.S. 668, 687

(1984). Under that standard, we discern no error in the district court’s analysis.

       In particular, although the district court determined at sentencing that Mr. Garcia

should be held responsible for a greater amount of drugs than initially contemplated by

the government and Mr. Garcia’s attorney, the court’s ruling does not support Mr.

Garcia’s allegation that his attorney was deficient. As we noted in the direct appeal, “the

determination of a convicted offender’s sentence is a matter within the discretion of the

sentencing judge.” Garcia, 78 F.3d at 1462. As a result, “[t]he district court may decline

to follow a sentence recommendation when it finds the stipulated facts do not accurately

reflect all relevant conduct bearing upon the guideline range.” Id. Here, after

conducting a hearing, assessing the credibility of the government informants, and

considering objections from Mr. Garcia’s attorney, the district court made such a finding,

concluding that the stipulated facts did not accurately reflect Mr. Garcia’s conduct.

Because the court acted within its discretion in making its sentencing findings and

because Mr. Garcia has failed to explain what arguments or objections would have

produced a different result, we conclude that Mr. Garcia has failed to make a substantial

showing of a denial of his Sixth Amendment right to effective assistance of counsel.

       As to Mr. Garcia’s second argument on appeal–that the district court relied on


                                             5
unreliable evidence at sentencing–we note that a § 2255 motion “is not available to test

the legality of a matter which should have been raised on direct appeal.” United States v.

Cox, 83 F.3d 336, 341 (10th Cir. 1996). Exceptions to this general rule exist if a

defendant demonstrates either (1) cause excusing the failure to raise the matter and

prejudice resulting from that failure or (2) a fundamental miscarriage of justice that would

result if the claim is not considered. See id. There is no indication that these exceptions

are applicable here. Moreover, several of Mr. Garcia’s arguments concerning the

reliability of evidence were raised and rejected on direct appeal. See Garcia, 78 F.3d at

1466-1467 (rejecting Mr. Garcia’s argument that the testimony of the government

informants was not sufficiently reliable). These arguments may not be raised again in a §

2255 proceeding. See United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994)

(refusing to consider arguments raised in a § 2255 proceeding that had been previously

raised on direct appeal).

       As to Mr. Garcia’s contention that witnesses were offered something of value in

exchange for their testimony, we note that this argument was not raised in the proceedings

below. Accordingly, we need not consider it. See United States v. Allen, 16 F.3d 377,

379 (10th Cir. 1994). Additionally, Mr. Garcia has failed to explain why this allegation

could not have been raised in the initial sentencing proceedings and in the direct appeal.

Moreover, his allegations are conclusory, and do not specifically identify the witnesses

involved or the items of value that were purportedly offered to them.


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       Finally, as to Mr. Garcia’s argument that the prosecution failed to disclose

exculpatory evidence, we note similar deficiencies. This argument was not raised below,

Mr. Garcia has provided no explanation as to why it could not have been raised on direct

appeal, and he has not identified the allegedly exculpatory evidence with any specificity.




                                    III. CONCLUSION

       Accordingly, for the reasons set forth above, we deny Mr. Garcia’s application for

a certificate of appealability and dismiss this appeal.



                                           Entered for the Court,



                                           Robert H. Henry
                                           Circuit Judge




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