UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. KEVIN BERNARD GREEN, Defendant - Appellant. No. 19-7033 (D.C. Nos. 6:17-CV-00058-RAW & 6:15-CR-00037-RAW-1) (E.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , BACHARACH , and McHUGH , Circuit Judges.

________________ _________________ Kevin Green appeals from the district c ourt’s denial of his motion to vacate, set aside, or correct his sent ence under 28 U.S.C. § 2255. We granted a certificate of appealability on one issue: wh ether the district court erre d in rejecting Green’s claim that his trial counsel was in effective for failing to consu lt with him about appealing his sentence. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we affirm.

* After examining the briefs and appella te record, this pa nel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

### June 3, 2020 Christopher M. Wolpert Clerk of Court2 I. Background Green pled guilty to conspiring to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1), and 846. He did not sign a plea agreement or waive his right to appeal. At Green’s plea hearing, the governmen t estimated that if he accepted responsibility, his “guideline rang e would be 120 months impris onment.” R. Vol. 1 at 180. Green then testified and prov ided a factual basis for his plea: I agreed with another person to vi olate the federal drug laws. I knowledgably and voluntarily became pa rt of a conspiracy. I knew the objective of the conspiracy was to buy and sell cocaine. We acted together for shared benefits. The conspiracy in volved at least five kilos of cocaine. Id. at 187. At Green’s sentencing hearing, the court began by preliminarily setting his base offense level at 30. Green’s resulting gu ideline range was less than the statutory mandatory minimum of 120 months. Green therefore asked the court to apply the socalled “safety valve” pr ovided by 18 U.S.C. § 3553(f) to impose a sentence within the guideline range and below the statutory mandatory minimum. He also lodged “an objection . . . regarding the drug quantitie s identified for purposes of guideline calculations.” R. Vol. 1 at 277. The government objected to safety-valve relief, arguing that Green did not qualify because he failed to “truthfu lly provide[] . . . all inform ation and evidence [he had] concerning the offense.” 18 U.S.C. § 3553(f)(5 ). To support this objection and the drug amounts which served as a basis for its pr oposed sentence, the government presented3 evidence and witness testimony that conflicted with the information Green had provided regarding the amount of drugs he sold , as well as other related matters. Green testified that his co-conspirators a nd others had lied when they claimed he had sold them drugs. The prosecutor then engaged Green in th e following exchange: Q Well, if you obtained at least five kilograms of powder cocaine in this conspiracy . . . who did you sell it to? A For me to plead guilty that was just my—my way of pleading guilty. Q So what you are telling this Cour t is when you testified—when you entered your guilty plea in front of the magistrate judge under oath, you lied about the amount of drugs yo u were responsible for? Is that your testimony? A Yes, sir. R. Vol. 1 at 267–68. This testimony led the government to as k the court to increase Green’s offense level by two levels for “obstruct[ing] or impe d[ing] . . . the admini stration of justice.” U.S. Sentencing Guidelines Manual (U SSG) § 3C1.1 (U.S. Sentencing Comm’n 2018). The court obliged, reasoning that Green took “the stand and stated he lied . . . while under oath at his plea hearing in front of a magistrate judge.” R. Vol. 1 at 280–81. It described this development as “an unexpected increase in the offense level,” noting that “the range was going to be about 120 months” but that “[t]he range has now changed to be above that.” Id. at 283. The court a pplied the revised range of 121–151 months and sentenced Green to 13 2 months in prison. Following the sentencing hearing, Green’ s trial counsel did not consult with him regarding a possible appeal. And Green did not appeal his sentence. Green then filed the4 instant § 2255 motion pro se, seek ing to vacate his sentence due to his attorney’s failure to consult with him about an appeal. He argued in his motio n that he had been denied a sentence based on offense level 30 and a gu ideline range of 97 to 121 months. Id. at 16. After conducting an evidentiary heari ng on the motion, the magistrate judge recommended that the motion be denied. The district judge adopted the magistrate judge’s report and recommendation. This appe al followed. We granted a certificate of appealability to permit Green to address wh ether his trial counsel was constitutionally ineffective for failing to consult with Gree n about whether to appeal his sentence.
II. Discussion “In reviewing the denial of a § 2255 motion, we review for clear error the district court’s factual fi ndings, and we review lega l conclusions de novo.” United
States v. Mora , 293 F.3d 1213, 1216 (10th Cir. 2002) . “Although he is represented by counsel in this appeal, we review [G reen’s] pro se § 2255 motion liberally.” United States v. Herring , 935 F.3d 1102, 1107 n.2 (10th Cir. 2019). To prevail on a claim of ineffective as sistance of counsel, a defendant must show “that counsel made erro rs so serious that counsel was not functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment” and “that the deficient performance prejudiced the defense.” Strickland v. Washington , 466 U.S. 668, 687 (1984). The Sixth Amendment requires an attorney to consult with a defendant regarding a possible appeal if “there is reason to think either (1) that a rational defendant would want to appeal (for exam ple, because there are nonfrivolous grounds for appeal), or (2) that this particular de fendant reasonably dem onstrated to counsel5 that he was interested in appealing.” Roe v. Flores-Ortega , 528 U.S. 470, 480 (2000). In deciding whether there is reason to th ink a rational defendant would want to appeal, we consider “the tota lity of the circumstances.” Id. “[A] highly relevant factor in this inquiry will be whether the conviction follows a tr ial or a guilty plea, both because a guilty plea reduc es the scope of potentially appealable issues and because such a plea may i ndicate that the defendant s eeks an end to judicial proceedings.” Id. “[I]n cases when the defenda nt pleads guilty, the court must consider such factors as whether the defenda nt received the sent ence bargained for as part of the plea and whether the plea expressl y reserved or waived some or all appeal rights.” Id. Green concedes that “there was no evidence presented [t o the district court] to show that Green demonstrated to his attorney that he was interest ed in appealing.” Aplt. Opening Br. at 6–7. But he argues that a rational defendant in his shoes would have wanted to appeal “because the senten ce imposed was twelve months longer than the sentence expected, there wa s no waiver of the right to appeal, and there was at least one nonfrivolous ground for appeal—that the sentencing court erred in applying a two-level increase in the base level of fense . . . without explicitly specifying the false statements it consider ed . . . and without making independent findings necessary to establish a willful impediment to, or obstruction of justice.” Id. at 7. The alleged nonfrivolous gr ounds for appeal identifie d by Green relate to the district court’s enhancement of his sentence for “obstruct[i ng] or imped[ing] . . . the6 administration of justice.” USSG § 3C1.1. 1 Upon our review of the record, we conclude that the district court did not err in its applicati on of section 3C1.1. “The commentary makes clear that th e guideline is applicable where a defendant provides ‘materially false info rmation to a judge or magistrate.’” United States v. Pelliere , 57 F.3d 936, 938 (10t h Cir. 1995) (quoting USSG § 3C1.1 cmt. n.4(F)). Green testified at his sentencing hearing that when he “entered [his] guilty plea in front of the magistrate judge under oath, [he] lied about the amount of drugs [he was] responsible for.” R. Vol. 1 at 267. The district court referenced this testimony as its basis for applying the sect ion 3C1.1 enhancement, noting Green “was either lying [at his plea heari ng] or he is lying now.” Id. at 281. Green’s statements at the plea hearing were mate rial as they provided the factual support for his guilty plea as required by Fed. R. Crim. P. 11(b)(3). And Green’s conflicting testimony at his sentencing hearing was likewis e material. His sentencing testimony was offered in support of “an objection . . . regarding the drug quantitie s identified for purposes of guideline calculations,” R. Vol. 1 at 277, and in an effort to rebut allegations that he failed to provide all relevant informa tion regarding his crim e to the government. Green claims the district court made tw o errors in applying section 3C1.1. First, he argues that the dist rict court failed to “explicitly specify the false statements

1 The government argues that Green fa iled to preserve an argument based on these grounds since he did not specifically re ference a possible app eal related to the section 3C1.1 enhancement in his pro se § 2255 motion. Liberally construing Green’s pro se filings in the district cour t, we conclude that Green preserved the arguments he presents on appeal.7 it considered in imposing the enhancemen t.” Aplt. Opening Br. at 14 (internal quotation marks omitted). Our precedent requires the trial c ourt to “generally identify the [false statements ] at issue,” but it need not “recite [them] verbatim.” United States v. Hawthorne , 316 F.3d 1140, 1146 (10th Cir. 2003) (internal quotation marks omitted) (applying USSG § 3C1.1 to pe rjurious testimony). Here, the district court noted that Green took “t he stand and stated he lied . . . while under oath at his plea hearing in front of a magistrate judge .” R. Vol. 1 at 280–81. We have no difficulty identifying Green’s false statem ents based on the district court’s description of the statements, including when , where and to whom they were made. We conclude that the distri ct court fulfilled its oblig ation to identify the false statements at issue. Green next argues that the district court erred in appl ying section 3C1.1 because it failed to “make independent findings necessary to establish a willful impediment to, or obstruction of justice.” Aplt. Opening Br. at 14 (internal quotation marks omitted). The district court found, based on Green’s own admission, that he lied under oath before the magistrate judge regarding the amount of drugs involved in the conspiracy. That finding clearly es tablishes a willful impediment to or obstruction of justice under section 3C1.1. We therefore agree that Green “has pointed to no nonfrivolous arguments in su pport of appeal” regarding the application of section 3C1.1. R. Vol. 1 at 400. Turning to Green’s remaining arguments, the fact that he expected a shorter sentence has no relevance when viewed in context. The district court also had8 anticipated imposing a senten ce in line with Green’s e xpectations, but that all changed when Green took the stand and adm itted that he had lied under oath at his plea hearing. Because the district cour t’s decision to increa se Green’s sentence resulted from his admitted pe rjury, a rational defendant in Green’s shoes would not have pursued an appeal to ch allenge the increase. And, in the absence of any rational basis for filing an appeal, the mere fact that Green did not waive his right to appeal would not, in and of itself, have provided hi s counsel with a reason to believe that he wanted to appeal. 2
We have no “reason to think . . . th at a rational defendant” in Green’s circumstances “would [have wanted] to appeal.” Roe , 528 U.S. at 480. We affirm the district court’s ruling that the Sixth Amendment did not requi re Green’s attorney to consult with him about a possi ble appeal of his sentence.
III. Conclusion We affirm the district court’s denial of Green’s § 2255 motion.

Entered for the Court
Mary Beck Briscoe Circuit Judge

2 Green suggests that the di strict court did not cons ider the facts that he expected a lower sentence and did not waiv e his right to appeal when evaluating whether a rational defendant woul d have sought an appeal. Cf. Roe , 528 U.S. at 480 (requiring courts to consider these facts to “det ermine whether a rational defendant would have desired an appeal”). Given that the district court acknowledged that it sentenced Green to “twelve months more than was es timated going in to the sentencing hearing,” R. Vol. 1 at 400, and noted its prior a dvisement to Green that he had a “right to appeal,” id. , we reject this suggestion.