* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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 

### NOV 14 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. DANNY LYNN MCGHEE,

Defendant-Appellant. No. 99-7149 (D.C. No. 99-CV-12-B) (E.D. Okla.)

ORDER AND JUDGMENT *

Before BALDOCK , KELLY , and HENRY , 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(G). T he case is therefore ordered submitted without oral argument. Defendant appeals the district court’s denial of hi s application for a certificate of appealability to proceed with his ap peal from the district court’s1 Generally, language in a proper plea agreement waiv ing a defendant’s right

to appeal is enforceable and would require dismissal of the appeal. See United (continued...) -2- denial of his motion made pursuant to 28 U.S.C. § 2 255. By order of September 7, 2000, we directed the government to re spond to defendant’s claim that he was denied effective assistance of counsel in connection with his guilty plea to two counts of using a communication facility to facilitate the conversion of a drug trafficking crime in violation of 21 U.S. C. § 843(b). Specifically, defendant claims his attorney was ineffective for f ailing to object to the presentence report. The government filed a respons e, and defendant has submitted a rebuttal. The district court dismissed the § 2255 applicationon the procedural ground that pursuant to the terms of the plea agree ment, defendant had waived his right to appeal the sentence, see R. Vol. I, tab 20 at 2, as stated at the plea hearing, “on any ground, except to challenge an upw ard departure from the applicable guideline range.” See R. Vol. I, tab 17, ex. 2 at 5-6. Defendant also waived his rights under 18 U.S.C. § 3742 (providingfor review of a sentence) to file “any post-conviction proceedings and any habea s corpus proceedings.”
See id. at 6. Defendant contends he has the right to appeal becau se the plea agreement was not knowingly or voluntarily entered into. 1 This alleged involuntariness is in1 (...continued)

States v. Rubio , ___ F.3d ___, No. 99-8101, 2000 WL 1629986 (10th Cir. Oct. 31, 2000). However, the defendant must enter into the plea agreement knowingly and voluntarily. See id. In addition, we have held that a waiver may not be used “to deny review of a claim that the agr eement was entered into with ineffective assistance of counsel.” United States v. Black , 201 F.3d 1296, 1301 (10th Cir. 2000). Under these circumstances, we wi ll consider defendant’s claim. -3- turn predicated on defendant’s understanding, pursu ant to the terms of the plea agreement language, that he would in fact be able t o object to the presentence report. See R. Vol. I, tab 2 (attachment to motion) (providingmethod for defendant to communicate any objections “to materia l information, base offense level, criminal history, sentencing guideline range s and policy statements contained in or omitted from the report”). In addi tion, defendant refers us to his attorney’s motion to withdraw from representation i n his direct criminal appeal, our No. 97-7023, wherein counsel stated that as part of the plea agreement, counsel had “agreed to forgo any objections to the defendant’s Pre-Sentence Report,” claiming that the government had said “that all plea negotiations would be off if Mr. McGhee objected to the Pre-Sentence R eport.” See Appellant’s Br. ex. D ¶ 1. In its response, the government accepts this statem ent. Appellee’s Response at 3. For purposes of this appeal, we acc ept defendant’s argument that he did not waive the right to have effective counse l at sentencing. We review the-4-

question of effective assistance of counsel de novo. See United States v. Prows , 118 F.3d 686, 691 (10th Cir. 1997). Our review of the plea hearing transcript persuades us that defendant was fully informed of and clearly understood that his m aximum exposure under the plea agreement was up to eight years’ imprisonment, see Appellee’s Response, ex. 1 at 9, and that each count carried a maximum four-year term. See id. at 8. The magistrate judge explained that there would be no f urther court proceedings if defendant pleaded guilty and that he could be sente nced “up to the maximum sentence that we have discussed earlier today.” Id. at 15. Defendant also understood that he was waiving his appeal rights “e ither by way of direct appeal or some 2855 [sic] or collateral proceedings.” See id. at 24. The court repeated (for a third time) the maximum penalties defendant could face to be sure defendant understood the consequences of his plea, see id. at 26, and, once again, advised defendant that he could not appeal the sent ence on any ground other than “an upward departure from the guideline range.” Id. at 30. The court further informed defendant that based on available informat ion, an upward departure could only be a sentence beyond the eight-year maxi mum, even though (as explained by the probation or pretrial services off icer) it was anticipated that the “top of the guideline sentencing range will actually exceed eight years.” Id. at 31. Defendant’s attorney also explained, with defendant ’s expressly stated-5-

understanding, that defendant needed “to expect to get eight years,” “to count on getting the full four on each” count, and that defe ndant understood he was not going to try and attack the sentences to “get way d own below the guidelines to two or three years or something like that.” Id. at 32. “The plea agreement must be construed according to what defendant reasonably understood at the time he made the agreement.” United States v. Prince , 204 F.3d 1021, 1023 (10th Cir.) (citing United States v. Jimenez , 928 F.2d 356, 363 (10th Cir. 1991)), cert. denied , 120 S. Ct. 1989 (2000). Here, as outlined above, it is evident from the colloquy amo ng the court, defendant and counsel that defendant understood exactly what the terms of the plea agreement were. Nor is there any question that he received e xactly the sentence explained during the plea hearing. Nonetheless, defendant claims his counsel was ineff ective for failing to object to the presentence report. In order to establish ineffective assistance of counsel, he must establish both that his attorney’s representation was deficient and that he was prejudiced by that deficiency. See Strickland v. Washington , 466 U.S. 668, 687 (1984). There is a strong presumption that counsel provided effective assistance. See id. at 689. Even accepting counsel’s alleged error in failing t o object to the presentence report as true, however, defendant cann ot make the required showing-6-

of prejudice. See Fox v. Ward , 200 F.3d 1286, 1295 (10th Cir.) (“An ineffective assistance claim may be resolved on either performance or prejudice grounds alone.”), cert. denied , ___ S. Ct. ___, 2000 WL 1281480 (U.S. Oct. 10, 20 00) (No. 00-5995). Defendant has failed to show that any alleged omission by counsel was prejudicial or would have affected the outcome of the sentencing in any way. Plaintiff knew exactly the sentence he wo uld receive and could have had no expectation of a lesser one. We agree with the district court that defendant has failed to make a substantial showing of the denial of a constitution al right,” 28 U.S.C. § 2253(c)(2), required to obtain a certificate of appealability. Accordingly, we DENY the request for a certificate of appealability and DISMISS the appeal.

Entered for the Court

Robert H. Henry Circuit Judge