United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-2387

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Juan Correa-Gutierrez, *

also known as *

Armando Valencia Andrade, *

* Appeal from the United States

Appellant, * District Court for the

* District of Nebraska.

v. *

* [UNPUBLISHED]

United States of America, *

*

Appellee. *

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Submitted: January 19, 2012

Filed: January 25, 2012

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Before LOKEN, BOWMAN, and BENTON, Circuit Judges.

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PER CURIAM.

Juan Correa-Gutierrez appeals from an order of the District Court denying his

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28 U.S.C. § 2255 motion to vacate, set aside, or correct the sentence imposed

following his guilty plea to a drug offense. Correa-Gutierrez, who has been residing

in this country illegally, argues that Padilla v. Kentucky, 130 S. Ct. 1473 (2010),

applies retroactively and that, consistent with Padilla, he established that his counsel

The Honorable Lyle E. Strom, United States District Judge for the District of 1

Nebraska.
in his underlying criminal case provided ineffective assistance by failing to advise

him that his guilty plea might result in deportation and by failing to object to the

criminal history calculations in his presentence report (PSR). Following careful

review, we find it unnecessary to decide whether Padilla applies, and we conclude

that the District Court properly denied Correa-Gutierrez relief under § 2255. 

The record conclusively establishes that Correa-Gutierrez did not meet his

burden to show ineffective assistance of his trial counsel or resulting prejudice: the

PSR indicated a likelihood that Correa-Gutierrez would be deported if convicted;

Correa-Gutierrez confirmed that he had read the PSR, discussed it with his counsel,

and understood it; and Correa-Gutierrez never moved to withdraw his guilty plea. 

See Deltoro-Aguilera v. United States, 625 F.3d 434, 436 (8th Cir. 2010) (noting that

when a district court denies a § 2255 motion without a hearing, an appellate court

affirms only if de novo review reveals that the motion and the files and records of the

case conclusively show that the movant is entitled to no relief); Strickland v.

Washington, 466 U.S. 668, 687 (1984) (holding that a convicted defendant can

establish ineffective assistance requiring reversal if he shows that counsel’s

performancewas deficient and that the deficient performance prejudiced his defense). 

For similar reasons, counsel was not ineffective for failing to informCorrea-Gutierrez

that his status as a “deportable alien” made him ineligible for a drug-treatment

program. Cf. United States v. Young, 927 F.2d 1060, 1062 (8th Cir.) (holding in

direct appeal that a defendant’s decision to plead guilty cannot be affected by a

court’s failure to tell him what he already knows), cert. denied, 512 U.S. 943 (1991).

Additionally, the record conclusively establishes that the PSR’s criminal history

calculations were not incorrect. See U.S.S.G. §§ 4A1.1(a) (calculating criminal

history score requires adding three “pointsfor each prior sentence exceeding one year

and one month”); 4A1.2(a) (defining the term“prior sentence” to mean “any sentence

previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea

of nolo contendere, for conduct not part of the instant offense”); Rodriguez v. United

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States, 17 F.3d 225, 226 (8th Cir. 1994) (holding that counsel’s failure to advance

meritless argument cannot constitute ineffective assistance).

Accordingly, we affirm the judgment of the District Court, and we grant

counsel’s motion for leave to withdraw. 

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