                                                                        F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        June 11, 2007
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court


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

              Plaintiff-Appellee,                        No. 06-3432
       v.                                                 (D. Kansas)
 CARLOS GASCA, also know n as                  (D.C. Nos. 06-CV-3130-JW L and
 Chino,                                              03-CR-20085-JW L)

              Defendant-Appellant.




                                      OR DER


Before H E N RY, TYM K O VICH , and HO LM ES, Circuit Judges.


      Carlos Gasca seeks a certificate of appealability (“COA”) to appeal the

district court’s order denying his 28 U.S.C. § 2255 petition to vacate, modify, or

set aside his sentence. In his § 2255 petition, M r. Gasca alleged ineffective

assistance of counsel in the negotiation of his plea agreement. For substantially

the same reasons set forth by the district court, we agree that M r. Gasca is not

entitled to a COA, and we dismiss this appeal.

                                I. BACKGROUND

      In July 2003, a federal grand jury returned an indictment charging M r.

Gasca with conspiracy to distribute and possess with intent to distribute

methamphetamine (count 1), marijuana (count 2), and cocaine (count 3), in
violation of 21 U.S.C. §§ 841(a)(1) and 846. In August 2004, prior to the

completion of the government’s case at trial, M r. Gasca agree to plead guilty to

count 1 of the indictment.

      M r. Gasca’s plea agreement stated:

             Defendant knowingly and voluntarily waives any right to
             appeal or collaterally attack any matter in connection with
             this prosecution, conviction and sentence. The defendant
             is aware that Title 18, U .S.C. § 3742 affords a defendant
             the right to appeal the conviction and sentence imposed.
             By entering into this agreement, the defendant know ingly
             waives any right to appeal the conviction or a sentence
             imposed which is within the guideline range determined
             appropriate by the court. The defendant also waives any
             right to challenge a sentence or manner in which it was
             determined in any collateral attack, including, but not
             limited to, a motion brought under Title 28, U.S.C. § 2255
             [except as limited by United States v. Cockerham , 237
             F.3d 1179, 1187 (10th Cir.2001) ]. In other words, the
             defendant waives the right to appeal the sentence imposed
             in this case except to the extent, if any, the court departs
             upwards from the applicable sentencing guideline range
             determined by the court. However, if the United States
             exercises its right to appeal the sentence imposed as
             authorized by Title 18, U.S.C. § 3742(b), the defendant is
             released from this waiver and may appeal the sentence
             received as authorized by Title 18, U.S.C. § 3742(a).

             ....

             The defendant agrees to waive any rights that may have
             been conferred under Blakely v. W ashington, 2004 W L
             1402697 (June 24, 2004), and agrees to have his sentence
             in this case determined under the U.S. Sentencing
             Guidelines (Guidelines). The defendant further waives
             any right to have facts that determine the offense level
             under the Guidelines alleged in an indictment and found
             by a jury beyond a reasonable doubt; agrees that facts that

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             determine the offense level will be found by the Court at
             sentencing by a preponderance of the evidence and agrees
             that the court may consider any reliable evidence,
             including hearsay; and the defendant agrees to w aive all
             constitutional challenges to the validity of the Guidelines.

             ....

             This plea agreement w as interpreted into Spanish for the
             defendant by M arcella Renna in the presence of m y
             attorney Scott Gyllenborg. M s. Renna is a federally-
             certified interpreter of Spanish.

Rec. doc. 242, at 2-3 (Government’s M otion Requesting Enforcement of the Plea

Agreement) (quoting Plea A greement, Rec. doc. 150, at ¶¶ 11, 12, and 17).

      At the change of plea proceeding, the district court informed M r. Gasca of

the maximum penalty for offense to which he had pleaded guilty: life

imprisonment followed by a term of supervised release and a fine of $4,000,000.

The court also informed M r. Gasca of the statutory minimum of ten years’

imprisonment.

      In response to the court’s inquiries, M r. Gasca stated that he had talked to

his attorney about how the Sentencing Guidelines might apply. The court then

explained:

             I will not be able to determine the guideline sentence for
             your case until a presentence report has been prepared by
             the probation officers of the court. And you and the
             government have had an opportunity to challenge or
             contest the facts reported to m e by the probation office,
             and also to challenge or contest the recommended
             application of the sentencing guidelines by the probation



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               office. So that the sentence might be different from any
               estimate that you have received.

Id. at 6 (quoting Tr. of Aug. 12, 2004 Plea Hr’g at 4-8). The court added that

“[u]nder some circumstances, I would have the authority to depart from the

guidelines, and I could impose a sentence that is more severe or less severe than

the sentence called for by the guidelines.” Id.

      M r. Gasca indicated that he understood these aspects of the Guideline

sentencing scheme. He told the court that he was satisfied with the services of

his counsel.

      The court sentenced M r. G asca to a term of 360 months’ imprisonment.

M r. Gasca filed a notice of appeal, but this court dismissed the appeal after the

government moved to enforce the waiver-of-appeal provision of the plea

agreement. Subsequently, M r. Gasca filed the instant 28 U.S.C. § 2255 motion,

alleging that he had received ineffective assistance of counsel in negotiation of

the plea agreement. In particular, M r. Gasca asserted that his counsel: (1) failed

to explain the effect of the Sentencing Guidelines, including the possibility of a

360-month sentence; and (2) failed to explain the waiver of appeal provision in

the plea agreement. M r. Gasca further alleged that (3) because he did not speak

English and the plea agreement “was translated to him in summary fashion and

not verbatim,” he did not understand that the m inimum sentence w as ten years

and that the Guidelines authorized a sentence of 360 months. Rec. doc. 240, at 2.



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       The government responded by filing a motion to enforce the provision of

the plea agreement waiving the right to collaterally attack the conviction and

sentence. After M r. Gasca failed to file a timely response, the district court

granted government’s motion and subsequently denied M r. Gasca’s application

for a COA. Filing an application for a COA with this court, M r. Gasca now seeks

to appeal the district court’s ruling.



                                   II. D ISC USSIO N

       In order to obtain a COA, M r. Gasca must make “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). M r. Gasca may

make this showing by demonstrating that “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.” M iller-El v. Cockrell, 537 U.S. 322, 336

(2003) (internal quotation marks omitted). “[A] claim can be debatable even

though every jurist of reason might agree, after the COA has been granted and the

case has received full consideration, that [the] petitioner will not prevail.” Id. at

338.

       Here, for substantially the same reasons set forth by the district court in its

O ctober 26, 2006 order, w e conclude that M r. Gasca is not entitled to a COA.     As

the district court observed, provisions in plea agreements w aiving the right to


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appeal and collaterally attack a conviction and sentence are enforceable if (a) the

disputed issue falls within the scope of the waiver; (b) the defendant knowingly

and voluntarily waived his rights; and (c) the waiver will not result in a

miscarriage of justice. See United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir.

2004) (en banc). H owever, despite a waiver provision in a plea agreement, a

defendant may still overcome a waiver provision if he establishes that he received

ineffective assistance in the negotiation of the plea agreement. In assessing an

allegation of ineffective assistance of counsel in this context, we must examine

“the factual circumstances surrounding the plea to determine whether [but for

counsel’s errors], the petitioner would have proceeded to trial.” M iller v.

Champion, 262 F.3d 1066, 1072 (10th Cir. 2001).

      M r. Gasca argues that the waiver provisions of the plea agreement should

not be enforced because his counsel did not explain the potential sentence and the

waiver provisions of the plea agreement. However, the transcript of the change-

of-plea proceeding indicates that the district court explained both matters and that

M r. Gasca stated that understood them. M oreover, M r. Gasca’s counsel has

submitted an affidavit stating that “I am satisfied that the entire document [the

plea agreement] was read in Spanish to M r. Gasca in my presence.” Rec. doc.

242 attach. A. In light of the district court’s explanations, M r. Gasca has failed to

assert a colorable claim of ineffective assistance of counsel that would vitiate the

plea agreement.


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      Accordingly, we DEN Y M r. Gasca’s application for a CO A and DISM ISS

this appeal.



                              Entered for the Court,



                              Robert H. Henry
                              Circuit Judge




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