* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 8 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v. RUBEN GREGORY SANCHEZ, Defendant-Appellant. No. 96-2153 (D.C. No. CIV-95-1299-LH)

(D. N.M.)

ORDER AND JUDGMENT *
Before BRORBY, EBEL and KELLY , Circuit Judges. After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.
We hereby withdraw the order and judgment filed in this case on July 11, 1997.-2-

On June 28, 1993, Mr. Ruben G. Sanchez pled guilty to unlawfully, knowingly, and intentionally manufacturing more tha n one kilogram of a mixture containing a detectable amount of methamphetamine i n violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) (1994), and to unlawfullyand knowingly maintaining a place for the purpose of unlawfully manufacturing, storing, distributing, and using a methamphetamine mixture in violation of 21 U.S.C. § 856 (1994). Under the plea agreement entered into pursuant to Fed. R. Cri m. P. 11(e)(1)(C), Mr. Sanchez and the government agreed to a sentence of ten year s imprisonment. See Fed. R. Crim. P. 11(e)(1)(C) (in a plea agreement, the gove rnment and the defendant may "agree that a specific sentence is the appropriate disposition of the case"). On September 10, 1993, the district court sentenced hi m to 120 months imprisonment and five years of supervised release pursuant to th e plea agreement.
On October 27, 1995, Mr. Sanchez filed a motion und er 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. Mr. Sanchez alleged his counsel was ineffective for failing to challenge the quantity o f methamphetamine used by the district court in calculating his sentence and for failing to raise the relevant facts entitling him to a downward departure for diminishe d capacity, acceptance of responsibility, and aberrant behavior.-3-

On March 11, 1996, the magistrate judge issued his Findings and Recommended Disposition recommending Mr. Sanchez's motion be denied. The magistrate judge found the government case was stro ng; if convicted at trial, Mr. Sanchez faced a possible sentence of 151-188 months imprisonment; faced with this possibility, Mr. Sanchez's counsel and the gov ernment entered into a plea agreement with a stipulated sentence of ten years ( 120 months) imprisonment; the district court sentenced Mr. Sanchez to the stipulated amount of time; and any argument by Mr. Sanchez's counsel to depart downwar d from the agreed upon sentence would have been a breach of the plea agree ment. The magistrate judge concluded Mr. Sanchez's counsel's performance did n ot fall below an objective standard of reasonableness nor was there a reasonab le probability that, but for counsel's alleged errors, Mr. Sanchez would have pr oceeded to trial rather than plead guilty. After de novo review, the district court adopted the magistr ate judge's recommendation, denied Mr. Sanchez's § 2255 motion, and dismissed the action with prejudice.
On appeal, Mr. Sanchez, appearing pro se , challenges the district court's denial of his § 2255 motion. Mr. Sanchez reiterate s his contention his counsel was ineffective for failing to challenge the quanti ty of methamphetamine used to1 For the first time on appeal, Mr. Sanchez challen ges the type of

methamphetamine used to calculate his sentence. Ho wever on appeal, we do not consider issues not raised or abandoned in the district court absent unusual circumstances not present in this case. In re Walker (Walker v. Mather) , 959 F.2d 894, 896 (10th Cir. 1992). -4- calculate his sentence. 1 When reviewing the denial of a § 2255 motion, we review the district court's legal conclusions de novo and its findings of fact for clear error. United States v. Cox , 83 F.3d 336, 338 (10th Cir. 1996). "A claim of ineffective assistance of counsel presents a mixed question of law and fact which we review de novo." Brewer v. Reynolds , 51 F.3d 1519, 1523 (10th Cir. 1995), cert. denied, 116 S. Ct. 936 (1996).

After a de novo review of the record, we hold the district court d id not err in its findings of facts nor in its application of the law. Therefore, we affirm the district court's dismissal of Mr. Sanchez's § 2255 motion for substantially the reasons set forth in the magistrate judge's Finding s and Recommended Disposition of March 11, 1996, and the district court's Order o f April 18, 1996, copies thereof being attached.2Due to the Supreme Court's recent decision in Lindh v. Murphy , 117

S. Ct. 2159 (1997), the Anti-Terrorism and Effectiv e Death Penalty Act of 1996 does not apply to cases such as this, that were pen ding on the effective date of the Act, April 24, 1996. Therefore, Mr. Sanchez is notrequired to obtain a certificate of appealability in order for us to reach the merit s of his appeal. -5- The appeal is AFFIRMED. 2

Entered for the Court WADE BRORBY United States Circuit Judge