*This order and judgment is not binding precedent except under the doctrines of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 judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

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

### JAN 6 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. JEREMIAH WARREN, Defendant-Appellant. No. 04-1027 (D. Colo.) (D.Ct. No. 03-CR-36-M)

ORDER AND JUDGMENT *

Before TACHA , Chief Circuit Judge, andPORFILIO and BRORBY , Senior 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)(2); 10th Cir. R. 34.1.9(G). The case is therefore ordered submitted without oral argument.-2-

Appellant Jeremiah Warren pled guilty to distributi ng and possessing with intent to distribute more than five grams of a subs tance and mixture containing a detectable amount of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii). He now appeals his ninety-three-mo nth sentence, contending: 1) the district court violated his due process rights in calculating his criminal history above the criminal history in his plea agreement; 2 ) his counsel provided him ineffective assistance during the plea process and sentencing; and 3) his sentence is unconstitutional, pursuant to Blakely v. Washington , ___ U.S. ___, 124 S. Ct. 2531 (U.S. Jun. 24, 2004). We exercise jurisdictio n pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, affirm the district court’s c onviction and sentence, and dismiss certain ineffective assistance of counsel c laims.

I. Background Mr. Warren pled guilty to one count of an eight-cou nt indictment, in exchange for the government dismissing the remainin g charges against him. The relevant portions of the plea agreement contained i nformation Mr. Warren could receive a sentence of between five and forty years for the crime to which he pled guilty, and a series of stipulations, stating: 1) his sentence would be determined by application of the Sentencing Guidelines;1 The plea agreement correctly states that the maximum number of months

imprisonment under the Sentencing Guidelines for an offense level of 25 and criminal history category of VI is 137 months. See U.S.S.G. Ch.5, Pt.A (Sentencing Table). -3- 2) the parties understood the court could impose any sentence up to the statutory maximum, regardless of any guideline rang e computation; 3) the parties believed Mr. Warren’s criminal histo ry category was III or IV, but understood such a computation was tentative and would be determined by the court; 4) the parties believed Mr. Warren’s sentence, unde r a “tentative” criminal history category of III, would be seventy to eighty -seven months, and under a “tentative” category of IV, would be eighty-four to 105 months; and 5) “[i]n order to be as accurate as possible,” with an estimated offense level of 25, Mr. Warren could be subject to “an imprisonm ent range of 60 months (Statutory Minimum Mandatory Sentence) to 137 month s (Top of Category VI).” 1 The government also agreed to request a downward de parture of fifteen percent under U.S.S.G. §5K1.1 based on information Mr. Warr en provided. In addition to his plea agreement, Mr. Warren also executed a stat ement in advance of his plea of guilty, acknowledging: 1) he could receive a se ntence of up to forty years; 2) no representations or promises were made to him as to what his sentence would be; 3) the court would not be bound by any agreemen t or stipulation in the plea2The increase in Mr. Warren’s criminal history category is attributable to several

felony and misdemeanor convictions of which the government was not previously aware. -4- agreement; and 4) the court would not determine his sentence until after receiving and reviewing the presentencing report.

At the change of plea hearing, the district court e xplained, and Mr. Warren stated he understood, the maximum penalty for his o ffense included a minimum penalty of five years imprisonment and a maximum pe nalty of forty years imprisonment; the sentence would depend in large pa rt on his criminal history as determined by a probation officer; and an uncertain ty existed as to the applicable criminal history category. After the district court accepted Mr. Warren’s guilty plea, a probation officer prepared a presentencing report, calculating his criminal history category at VI, rather than III or IV. 2 Applying a three-level reduction for acceptance of responsibility, the probation officerapplied an offense level of 25, to calculate the sentencing guideline range at 110 to 137 months imprisonment.

Mr. Warren did not file an objection to the present encing report or make any objections at the sentencing hearing. At sente ncing, the district court accepted the factual findings in the presentencing report regarding Mr. Warren’s past convictions and criminal history category dete rmination; it then granted the-5-

government’s motion for a downward departure under U.S.S.G. §5K1.1 and sentenced Mr. Warrant to ninety-three months impris onment, followed by a term of supervised release of four years.

II. Discussion A. Prior Conviction Determination For the first time on appeal, Mr. Warren raises a d ue process claim concerning the criminal history category applied to his sentence. He suggests the district court erred in applying a higher criminal history category than the ones tentatively set out in the plea agreement, and then failing to sua sponte give him the option of withdrawing his plea.

Both attorneys and the court have a duty to apprise a defendant of the consequences of a guilty plea and ensure it is volu ntary. See United States v. Williams , 919 F.2d 1451, 1456 (10th Cir. 1990). Under Fede ral Rule of Criminal Procedure 11(c), the court must “advise the defenda nt of the mandatory minimum and maximum penalties for the crime committed and t hat the guidelines will govern sentencing.” Id. “When the court accepts a guilty plea, it may exp ressly retain the power to determine relevant facts bearin g on sentencing under the Guidelines, notwithstanding the parties’ stipulatio ns of facts.” Id. “If neither the-6-

plea agreement nor the court has guaranteed the def endant that the plea agreement stipulations are binding, a defendant cannot claim undue surprise or that the plea is rendered involuntary when the court exercises th is power.” Id. Thus, a district court is not bound by inaccurate or tentative stipu lations contained in a plea agreement, because “an erroneous sentencing estimat e does not render a plea involuntary.” See United States v. Reyes Pena , 216 F.3d 1204, 1212 (10th Cir.), cert. denied, 531 U.S. 973 (2000).

In this case, it was not error for the district cou rt to exercise its power in determining the applicable criminal convictions forthe purpose of calculating a correct criminal history category, given 1) the “te ntative” criminal category stipulations in the plea agreement; 2) the districtcourt’s explanations; and 3) Mr. Warren’s stated understanding that the maximum pena lty for his offense included a possible forty-year imprisonment, and that his se ntence would depend in large part on his criminal history as determined by a pro bation officer because an uncertainty existed as to the applicable criminal c ategory.

In addition, under the circumstances presented, we cannot say the district court erred by not sua sponte initiating a withdrawal of plea proceeding. A defendant does not have an absolute right to withdr aw a guilty plea, but rather3 Mr. Warren raises other ineffective assistance issues which, as the government

points out, he simply listed and failed to support with argument, and which consist of claims his counsel failed to: 1) properly calculate his criminal history; 2) file objections to the presentencing report; 3) file a motion pursuant to U.S.S.G. §5K2.0 asking for a downward departure for his criminal history being overstated by a technical calculation; 4) argue for a downward departure if his criminal history turned out to be higher than the parties contemplated; 5) advise him of the likelihood of an enhanced sentence (although it does not appear from the record an enhancement was applied); 6) argue the Sentencing Guidelines are unconstitutional; and 7) timely discuss his plea agreement. Because Mr. Warren fails to make any argument or cite any authority in support of his claims, see United States v. Kunzman , 54 F.3d 1522, 1534 (10th Cir. 1995), or fully apprise us of the specific errors made by counsel, United States v. Lindsey, 389 F.3d 1334, 1336 n.3 (10th Cir. 2004), we decline to address these ineffective assistance claims on direct appeal. -7- bears the burden of demonstrating a “fair and just reason” for the withdrawal of the plea. See United States v. Siedlik, 231 F.3d 744, 748 (10th Cir. 2000). Given Mr. Warren gave no reason for withdrawing the plea and no reason is apparent from the district court proceedings, as previously discussed, we reject Mr. Warren’s contention the district court somehow erre d in not sua sponte providing him an opportunity to withdraw his plea.

B. Ineffective Assistance of Counsel For the first time on appeal, Mr. Warren also raise s several ineffective assistance claims. 3 He provides argument in support of two of these c laims, suggesting his counsel acted deficiently in: 1) re presenting he would receive a sentence between sixty and seventy-one months impri sonment by entering into the plea agreement; and 2) admitting his own legal inco mpetency to handle Mr.-8-

Warren’s appeal.

The government seeks to dismiss the ineffective ass istance of counsel claims on direct appeal, although it admits ineffec tive assistance claims generally should be brought in collateral proceedings, not on direct appeal, for the purpose of developing a factual record on the issue and all owing the district court the opportunity to address it. See United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). Nevertheless, we have recognized exceptions in rare instances where an ineffectiveness of counsel claim needs no further development prior to review and resolution on direct appeal. Id. We conclude this case meets the rare exception, as no further development of th e record would benefit our resolution of the issue regarding Mr. Warren’s coun sel’s representation of the sentence he would receive.

In assessing plea agreements, we have said “it is w ell established that a voluntary and unconditional guilty plea waives all non-jurisdictional defenses,” unless the defendant, as here, attacks “the volunta ry and intelligent character of the guilty plea by showing that the advice he recei ved from counsel was not [competent].” United States v. Salazar , 323 F.3d 852, 856 (10th Cir. 2003) (quotation marks and citations omitted). The two-p art test announced in-9-

Strickland v. Washington , 466 U.S. 668, 687 (1984), applies to challenges t o guilty pleas based on ineffective assistance of cou nsel, and requires a defendant asserting ineffective assistance of counsel to showboth deficient performance of counsel and prejudice resulting from such deficientperformance. See also Hill v. Lockhart , 474 U.S. 52, 57 (1985) (applying two-part test to ineffective assistance of counsel claim regarding plea process). For a de fendant who pleads guilty, a showing of prejudice requires him to establish “the re is a reasonable probability that, but for counsel’s errors, he would not have p leaded guilty and would have insisted on going to trial.” Hill , 474 U.S. at 59.

In this case, we have no reason to believe Mr. Warr en’s counsel misinformed or improperly counseled him as to the p otential sentence he might receive. The plea agreement contained information he could receive a sentence of between five and forty years, and he stipulated he understood the district court could impose any sentence up to the statutory maxim um of forty years and that the criminal history category computations of III or IVwere tentative, to ultimately be determined by the court. He also stipulated he understood that if his “tentative” criminal history category was III, his sentence would be seventy to eighty-seven months, and if it was IV, his sentence would be eighty-four to 105 months, or possibly as high as 137 months under a c riminal history category of VI4In support of his contention, Mr. Warren has submitted a copy of a handwritten

letter he wrote to his current appellate attorney, complaining about his prior trial attorney’s alleged statements to Mr. Warren that he would receive only a sixty-month sentence. The government has filed a motion to strike such evidence as inadmissible hearsay. We grant the government’s motion, but in so doing, note that even if we consider the letter and counsel’s alleged advice Mr. Warren would only get a sixty-month sentence, we would still conclude Mr. Warren has failed to show prejudice for the reasons stated above. -10- — all well over the sixty to seventy-one months his counsel allegedly represented to him. Similarly, in his statement in advance of his plea of guilty, Mr. Warren acknowledged he could receive a sentence of up to f orty years, no representations or promises as to his sentence were made to him, an d the district court would not be bound by any agreement or stipulation in the ple a agreement, but would determine his sentence after receiving and reviewin g the presentencing report. At the change of plea hearing, the district court expl ained, and Mr. Warren stated he understood, the maximum penalty for his offense inc luded a forty-year term of imprisonment, and an uncertainty existed with respe ct to his criminal history category and would depend on his criminal history a s determined by a probation officer.

Even if Mr. Warren’s counsel erroneously represente d he would receive a sentence between sixty and seventy-one months impri sonment by entering into the plea agreement, 4 Mr. Warren was aware when he entered the plea agre ement, and5On May 6, 2004, Mr. Warren’s trial counsel filed a response to our order to show

cause why he should not be removed as appellate counsel. He stated he did not think he knew how to win a federal criminal appeal, and requested he be removed from further Criminal Justice Act appointments in this court. While he requested removal at the appellate level, he expressly stated he did not wish to be removed from the list of eligibility for Criminal Justice Act appointments in the district court because he believed his performance as a criminal defense attorney at the trial level has been very effective and he has done outstanding criminal defense work. This court issued an Order removing Mr. Warren as counsel, striking him from the list of attorneys eligible for Criminal Justice -11- at his change of plea hearing, that his sentence co uld be at least seventy to eightyseven months if his criminal history category was I II, or at least eighty-four to 105 months if it was IV, or even higher, depending on the district court’s determination of his criminal history. Thus, it is clear Mr. Warren was aware of the contingencies involved in determining his sente nce, and nevertheless entered into a guilty plea. Accordingly, even if his couns el acted deficiently in representing a possible sixty- to seventy-one-monthsentence, Mr. Warren cannot show prejudice, given he made an informed decision to nevertheless enter a guilty plea. Moreover, Mr. Warren has not shown “a reason able probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill , 474 U.S. at 59.

As to Mr. Warren’s claim his counsel admitted incompetency, as evidenced allegedly by motions filed by him seeking withdrawa l as counsel and our order relieving him of his representation of Mr. Warren, 5 the factual record isAct appointments in this court; and directing a letter to be sent to the United States

District Court for the District of Colorado, recommending he be stricken from that court’s Criminal Justice Act Panel. -12- undeveloped and the district court should be allowe d an opportunity to address it “in the first instance for effective review.” Galloway , 56 F.3d at 1240. Accordingly, the issue should be raised before the district court on collateral review and therefore, we dismiss it on appeal.

C. Prior Convictions and Maximum Statutory Sentence Issues We next briefly address Mr. Warren’s argument his s entence is unconstitutional, based on his general assertion th e sentencing guidelines applied to his sentence by the district court are unconstit utional under Blakely v. Washington. Mr. Warren fails to present a meritorious argument.

The Supreme Court, in deciding Blakely , unequivocally restated the proposition announced in Apprendi v. New Jersey , 530 U.S. 466, 490 (2000), which states that “ [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasona ble doubt.” Blakely, 124 S. Ct. at 2536 (emphasis added); see also United States v. Cooper , 375 F.3d 1041, 1052 n.3 (10th Cir.), cert. denied, 125 S. Ct. 634 (2004). In this case, because-13-

Mr. Warren’s ninety-three-month sentence is below the prescribed statutory maximum sentence of forty years provided under 21 U .S.C. § 841(b)(1)(B)(iii), to which he pled guilty, we reject his contention his sentence is unconstitutional under Blakely. Moreover, Mr. Warren’s argument must fail because the criminal history category of which he complains is based on prior convictions, which under both Blakely and Apprendineed not be presented to a jury for determination. See Cooper , 375 F.3d at 1052 n.3.

III. Conclusion For the reasons provided herein, Mr. Warren’s convi ction and sentence are
AFFIRMED and we GRANT the government’s motion to strike. As to any remaining ineffective assistance of counsel claims, we DISMISS them for the reasons stated.

Entered by the Court: WADE BRORBY United States Circuit Judge