                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  October 2, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.
                                                        No. 09-3147
                                                 (D.C. No. 2:08-02466-KHV)
 TRISTAN LUSTER,
                                                          (D. Kan.)
          Defendant-Appellant.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.


      Pursuant to a plea agreement under Fed. R. Crim. P. 11(c)(1)(C), Tristan

Luster agreed to plead guilty to distribution of cocaine in violation of 21 U.S.C.

§ 841(a)(1), and (b)(1)(C). Mr. Luster’s written plea agreement stated that, in

exchange for his plea, the government would not pursue additional charges

against Mr. Luster. The agreement also contained the parties’ joint

recommendation of a 180 month sentence.




      *
        This order is not binding precedent except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Roughly six months after the district court accepted the plea, but still prior

to sentencing, Mr. Luster, through counsel, filed a motion seeking to withdraw his

plea. Finding that the plea had been entered knowingly and voluntarily, the

district court denied Mr. Luster’s motion. Then, consistent with the parties’

agreed recommendation, the court sentenced Mr. Luster to 180 months in prison.

      Mr. Luster responded by filing the pro se motion under 28 U.S.C. § 2255

that is the focus of our current attention. In his motion, Mr. Luster argued that

his sentence should be vacated for two reasons, both sounding in ineffective

assistance of counsel.

      First, Mr. Luster argued that counsel failed to advise him of certain

sentencing enhancements he might face under the advisory guidelines. The

district court rejected this argument, noting that “[d]efendant’s plea agreement

under Rule 11(c)(1)(C) called for a [180 month] prison term,” the very term he

received, “and defendant has not explained how the guideline calculations were

relevant to his decision to enter a plea.” D. Ct. Memorandum and Order, R. Vol.

I at 186. The plea agreement explicitly stated that the parties’ recommended 180

month sentence, although within the guidelines, did not depend upon them: “The

parties are of the belief that the proposed sentence does not offend the now

advisory sentencing guidelines, but because this proposed sentence is sought

pursuant to Fed. R. Crim. P. 11(c)(1)(C), the parties are not requesting the

imposition of an advisory guideline sentence.” Plea agreement, R. Vol. I at

                                         -2-
118-19. In light of this, the district court concluded, the “defendant has not

shown a reasonable probability that but for [counsel’s] alleged misunderstanding

of the guidelines calculations, the result of the plea proceedings would have been

different.” D. Ct. Memorandum and Order, R. Vol. I at 186-87; see also United

States v. Taylor, 454 F.3d 1075, 1080 (10th Cir. 2006) (defendant failed to show

constitutional prejudice when he was sentenced in accord with his plea

agreement).

      Second, Mr. Luster argued that counsel’s failure to object at sentencing to

guidelines calculations concerning Mr. Luster’s criminal history and firearms use

amounted to ineffective assistance. The district court observed, however, that Mr.

Luster’s plea agreement contained a waiver of any “right to appeal or collaterally

attack any matter in connection with [his] prosecution, conviction, and sentence.”

Plea agreement, R. Vol. I at 121. Thus, the district court found Mr. Luster’s

second argument fell within the proscription he previously agreed to. Even

assuming (without granting) otherwise, the district court found Mr. Luster’s

argument still lacked merit. “[E]ven if the Court assumes that counsel was

deficient in failing to object . . . defendant has not shown a reasonable probability

that had his counsel objected, the Court would have imposed a different

sentence . . . The guideline calculation did not directly impact defendant’s

sentence in this case.” D. Ct. Memorandum and Order, R. Vol. I at 187-88. Once

again, because the plea was based on a negotiated plea and not the guidelines, the

                                        -3-
court held, Mr. Luster couldn’t be prejudiced by counsel’s putative failure to

object to the guideline calculations. The district court then proceeded to deny Mr.

Luster’s application for a certificate of appealability (COA) and his application to

proceed in forma pauperis. Now before us, Mr. Luster renews his requests both

for a COA and for permission to proceed in forma pauperis.

      In order to secure a COA, Mr. Luster must show “jurists of reason could

disagree with the district court’s resolution of his constitutional claims

[ineffective assistance of counsel] or that jurists could conclude the issues

presented are adequate to deserve encouragement to proceed further.” Miller-El

v. Cockrell, 537 U.S. 322, 327 (2003). Mindful of Mr. Luster’s pro se status, in

making this requisite assessment we review his claims with liberality. Van

Deelen v. Johnson, 497 F.3d 1151, 1153 n. 1 (10th Cir. 2007). Even doing so,

however, we cannot say Mr. Luster has met the high threshold required for a

COA, and reach this conclusion for substantially the same reasons the district

court provided. Neither do we find ourselves likely with additional exposition to

improve on the district court’s thoughtful and extensive analysis.

      We likewise agree with the district court that Mr. Luster is not entitled to

proceed in forma pauperis because he has failed to identify “the existence of a

reasoned, nonfrivolous argument on the law and facts in support of the issues

raised on appeal.” McIntosh v. U.S. Parole Comm'n, 115 F.3d 809, 812 (10th Cir.

1997) (quoting DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991)).

                                         -4-
As the district court explained in denying Mr. Luster’s in forma pauperis motion,

the “defendant’s appeal concerns alleged errors in the calculation of his guideline

sentence. Defendant has not explained how the calculation of his guideline

sentence was relevant to his decision to enter a plea agreement under Rule

11(c)(1)(C), Fed. R. Crim. P., which proposed a sentence of” 180 months, and

which was exactly what he received. D. Ct. Order July 6, 2009 at 1.

      Mr. Luster’s COA application and in forma pauperis petition are denied

and this appeal is dismissed.



                                       ENTERED FOR THE COURT



                                       Neil M. Gorsuch
                                       Circuit Judge




                                        -5-
