                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          OCT 28 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 03-4126
                                                  (D.C. Nos. 2:01-CV-491-TC
    EDGAR ROMERO-GALLARDO,                          & 2:99-CR-405-01-TC)
                                                          (D. Utah)
                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before KELLY , HARTZ , and TYMKOVICH , 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 Edgar Romero-Gallardo, a federal prisoner appearing pro se,

appeals the district court’s denial of his motion under 28 U.S.C. § 2255 to vacate,



*
      This order and judgment is not binding precedent, except under the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.
set aside, or correct his sentence. Previously, this court granted a certificate of

appealability (COA) on the issue whether Defendant received ineffective

assistance of counsel due to counsel’s failure to file a motion to suppress

evidence. See 28 U.S.C. § 2253(c) (providing that a § 2255 movant may not

appeal in the absence of a COA, based on a substantial showing of the denial of a

constitutional right). We affirm the district court’s ruling on the suppression

issue and deny a COA on Defendant’s remaining issues.

                                    Background

      Defendant was charged in 1999 with federal drug crimes, including four

counts of distributing and possessing methamphetamine with intent to distribute

and one count of possessing cocaine with the intent to distribute. According to

Defendant, police had seized 13 pounds of methamphetamine and 3 kilograms of

cocaine while executing a search warrant on his residence. Rather than

proceeding to trial, Defendant entered into a plea agreement. The agreement

provided for a plea of guilty to one count of distributing 5 pounds of

methamphetamine and one count of possession with intent to distribute 12 to 13

pounds of methamphetamine. Defendant indicated his understanding that the

relevant conduct for the purposes of computing his sentence guideline range

included about 4.7 kilograms of cocaine, as well as 6.8 kilograms of

methamphetamine. The government agreed to recommend a sentence of “either


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120 months, or the low end of applicable guideline range,   whichever is greater ,

in federal custody.” R. Supp. Vol. I, Doc. 32 at 6.

      At the change-of-plea hearing, the district court inquired into Defendant’s

satisfaction with his attorney’s representation, his realization that no one could

predict his guideline range or sentence, and his general understanding of the plea

agreement. The district court then allowed entry of the plea.

      Factoring Defendant’s criminal history under several aliases into the

sentencing calculation, the guideline range of imprisonment set out in the

presentence report turned out to be 168 to 210 months. The district court

sentenced Defendant to a 168-month term of imprisonment, a sentence consistent

with the plea agreement.

      Defendant filed a direct appeal of his conviction but later asked to

withdraw it, stating that he wished to pursue claims of ineffective assistance of

counsel under § 2255. This court therefore dismissed the appeal. In § 2255

proceedings Defendant asserted that his counsel provided constitutionally

ineffective assistance by failing to (1) file a pretrial motion to suppress the

evidence, (2) negotiate a stipulation to a specific sentence, and (3) investigate the

law applicable to sentencing. The district court rejected all three claims and

dismissed the case.




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                                        Discussion

Ineffective-Assistance-of-Counsel        Standards

       “A claim of ineffective assistance of counsel presents a mixed question of

law and fact which we review de novo.”         United States v. Kennedy , 225 F.3d

1187, 1197 (10th Cir. 2000) (internal quotation marks omitted). A defendant who

challenges a guilty plea based on ineffective assistance of counsel must

demonstrate (1) deficient performance by counsel that (2) caused prejudice to the

defendant, such that “‘but for counsel’s errors, [the defendant] would not have

pleaded guilty and insisted on going to trial.’”     United States v. Gordon , 4 F.3d

1567, 1570 (10th Cir. 1993)     (quoting Hill v. Lockhart , 474 U.S. 52, 59 (1985)).

The analysis takes place in the context of a presumption that an attorney’s

conduct is reasonably proficient.      Strickland v. Washington , 466 U.S. 668, 689

(1984). Further, a “defendant’s statements on the record, ‘as well as any findings

made by the judge accepting the plea, constitute a formidable barrier in any

subsequent collateral proceedings.’”       Romero v. Tansy , 46 F.3d 1024, 1033

(10th Cir. 1995) (quoting     Blackledge v. Allison , 431 U.S. 63, 74 (1977)).

Failure to file suppression motion

       Defendant argues that his attorney should have moved to suppress evidence

of the methamphetamine and cocaine found in his home. In district court he

asserted that the drugs were the fruit of an illegal search because his attorney had


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reason to believe that the affidavit supporting the search warrant application

“contained false and misleading statements of the attesting officer,” R., Vol. 1,

Doc. 1 at 8. On appeal he does not mention his fraudulent-statement theory.

Instead, he claims that the drugs should have been suppressed because the

affidavit does not “contain[] any basis on which to have issued a search warrant

for [his] residence,” Aplt. Br. at 2, other than “the subjective belief of the

affiant,” id. at 8. 1

       Thus, Defendant has shifted his argument under the first prong of the

ineffective-assistance analysis. He now claims that his attorney’s performance

was deficient for failing to act on Defendant’s recent observation that the

search-warrant affidavit lacked specificity. “Changing to a new theory on appeal

that falls under the same general category as an argument presented [to the

district court] . . . is not adequate to preserve issues for appeal.”   Okland Oil Co.

v. Conoco Inc. , 144 F.3d 1308, 1314 n.4 (10th Cir. 1998) (internal quotation



1
       “Probable cause exists when the facts presented . . . would warrant a man
of reasonable caution to believe that evidence of a crime will be found at the
place to be searched.” United States v. Harris , 369 F.3d 1157, 1165 (10th Cir.),
petition for cert. filed (U.S. Aug. 23, 2004) (No. 04-6011) (internal quotation
marks omitted). The challenged affidavit and search warrant are included in the
record on appeal. Our examination of these documents does not convince us that
the affidavit fails to establish probable cause. It is by no means evident that
Defendant’s suppression argument is meritorious–a necessary prerequisite for a
successful ineffective-assistance claim under these circumstances.    See
Kimmelman v. Morrison , 477 U.S. 365, 382 (1986).

                                               -5-
marks omitted). We decline to consider Defendant’s theory raised for the first

time on appeal. We therefore affirm the district court’s rejection of the

ineffective-assistance claim arising out of counsel’s dispensing with a suppression

motion. 2

Failure to negotiate a stipulation to a specific sentence

       Defendant also claims that counsel’s performance was constitutionally

ineffective for failing to negotiate an agreement stipulating to a specific sentence.

He makes this assertion without even alleging that the government would have

been willing to reach this type of agreement. Thus, he does not establish either

deficient performance on the part of his attorney or “a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have

been different.”   Strickland , 466 U.S. at 694. For substantially the reasons




2
        We reach this result without reviewing the district court’s determination,
based on a quotation from Lefkowitz v. Newsome, 420 U.S. 283, 288 (1975), that
Defendant’s guilty plea barred his challenge to the search warrant. We note,
however, that the Supreme Court has held that “a defendant who pleads guilty
upon the advice of counsel ‘may . . . attack the voluntary and intelligent character
of the guilty plea by showing that the advice he received from counsel was not
within [the range of competence demanded of attorneys in criminal cases].’”     Hill ,
474 U.S. at 56-57 (quoting Tollett v. Henderson , 411 U.S. 258, 267 (1973)).
Further, a habeas petitioner may raise a Sixth Amendment issue by arguing that
his attorney’s handling of a suppression issue was incompetent.      See Kimmelman ,
477 U.S. at 382-83. In sum, a guilty plea does not waive a claim of ineffective
assistance of counsel relating to the knowing and voluntary nature of the plea.

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expressed in the district court’s order, we deny a COA on this aspect of

Defendant’s ineffective-assistance claim.

Failure to investigate the law applicable to sentencing

      The final issue that Defendant seeks to raise on appeal is the contention

that his attorney failed to investigate sentencing law. The claim is based on sheer

speculation that further investigation would have led the attorney to pursue and

obtain the government’s agreement to a shorter sentence. We agree with the

district court that this complaint about counsel does not rise to the level of a

constitutional claim. We deny a COA on the issue.

                                     Conclusion

      We AFFIRM the ruling of the district court denying Defendant’s claim of

ineffective assistance of counsel based on failure to file a suppression motion. As

to the remaining claims, we DENY a COA and DISMISS this appeal. Plaintiff’s

renewed motion for appointment of counsel on appeal and all other pending

motions are denied. The mandate shall issue forthwith.



                                                     Entered for the Court



                                                     Harris L Hartz
                                                     Circuit Judge



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