F I L E D

United States Court of Appeals

Tenth Circuit

AUG 22 2001

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PAUL GARFINKLE,

Defendant-Appellant.

No. 00-4156

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

(D.C. No. 99-CV-128-B)

Submitted on the briefs:

J. David Bogenschutz of Bogenschutz & Dutko, P.A., Fort Lauderdale, Florida,

for Defendant-Appellant.

Paul M. Warner, United States Attorney; Wayne T. Dance, Assistant United States

Attorney, Chief Appellate Section, Salt Lake City, Utah, for Plaintiff-Appellee.

Before SEYMOUR and McKAY , Circuit Judges, and BRORBY , Senior Circuit

Judge.

McKAY , Circuit Judge.
1 After examining the briefs and appellate record, this panel has determined

unanimously to grant 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

ordered submitted without oral argument. 

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Paul Garfinkle appeals from the district court’s order adopting the

recommendation of the magistrate judge in this case and dismissing appellant’s

petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. 1

Our jurisdiction over this appeal arises from 28 U.S.C. § 2253(a). “We review

the district court’s legal rulings on a § 2255 motion de novo and its findings of

fact for clear error.” United States v. Kennedy , 225 F.3d 1187, 1193 (10th Cir.

2000) (further quotation omitted), cert. denied , 121 S. Ct. 1406 (2001).

Appellant was originally sentenced to five years’ probation after pleading

guilty to money laundering and conspiracy. He was subsequently charged with

violating conditions of his probation and his probation was revoked. Appellant

was resentenced to two years’ imprisonment followed by three years’ supervised

release. On direct appeal, this court affirmed his new sentence. See United States

v. Garfinkle , No. 98-4040, 1998 WL 781022, at **2 (10th Cir. Nov. 6, 1998)

(unpublished order and judgment). 

In his § 2255 motion, appellant did not challenge the imprisonment portion

of his new sentence, but contended that the sentencing court could not legally

impose supervised release after revocation of his probation. After dismissing the
2 Appellant also contended, before the district court, that upon resentencing

the court should have given him credit for time spent on probation. The district

court rejected the argument and did not grant a certificate of appealability on this

point. However, because appellant does not raise the argument on appeal, it is

waived. See State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7

(10th Cir. 1994).

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motion, the district court granted appellant a certificate of appealability on the

issue. 2

 See 28 U.S.C. § 2253(c)(1)(B). We note that, while appellant did not

raise this issue on direct appeal from his resentencing, he alleges that his counsel

was ineffective for failing to raise it, a contention that, if true, would constitute

cause for his default. See Murray v. Carrier , 477 U.S. 478, 488 (1986). 

Therefore, we examine appellant’s arguments, as did the district court, in light of

the standards applicable to ineffective assistance claims set out in Strickland v.

Washington , 466 U.S. 668, 687 (1984). 

Appellant presents three main arguments to support his contention that the

district court could not legally sentence him to a term of supervised release

following revocation of his probation. First, he contends that the provisions of

18 U.S.C. § 3583 prohibit any sentence beyond the two-year term of

imprisonment he received. Then he argues that this court’s decision in United

States v. Rockwell , 984 F.2d 1112 (10th Cir. 1993), overruled by Johnson v.

United States , 529 U.S. 694 (2000), precludes the district court from imposing
3 Despite the abrogation of Rockwell by the Supreme Court’s decision in

Johnson , appellant contends that Rockwell still applies to his case because it was

intact at the time of the conduct underlying his conviction. See Johnson , 529 U.S.

at 701 (holding that “postrevocation penalties relate to the original offense”).

4 Furthermore, contrary to this court’s rules, appellant failed to identify in his

opening brief where his arguments were raised and ruled on by the district court. 

See 10th Cir. R. 28.2(C)(2).

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an additional term of supervised release. 3 Underlying these two theories

is appellant’s last main point: that probation and supervised release are

functionally equivalent.

Before the magistrate judge, appellant alleged that his original sentence

was five years’ supervised release. See Appellant’s App. at 10, 41. The

magistrate judge noted that the record demonstrated otherwise; appellant was

actually sentenced to probation. See id. at 51. Not until his counseled objections

to the magistrate judge’s report and recommendation did appellant contend that

probation and supervised release are functionally equivalent, relying on

introductory comments to Chapter 7 of the United States Sentencing Guidelines

Manual. In this circuit, theories raised for the first time in objections to the

magistrate judge’s report are deemed waived. See Marshall v. Chater , 75 F.3d

1421, 1426 (10th Cir. 1996). Therefore, we decline to address appellant’s

argument that probation and supervised release are functionally equivalent. 4

However, in light of appellant’s initial arguments before the magistrate judge that

18 U.S.C. § 3583 and Rockwell should be applied to his case--both authorities
5 Appellant also argues that, because he was sentenced to two years’

imprisonment, the maximum penalty available for his revocation under § 3583,

the district court could not add a term of supervised release. This argument was

not raised until appellant’s objections to the magistrate judge’s report and is

therefore waived. Marshall , 75 F.3d at 1426. 

6 Although we have no previous published authority on point, we note that

this court has followed this same analysis in an unpublished order and judgment. 

See United States v. Vogt , No. 96-1192, 1997 WL 20125, at **3 (10th Cir.

Jan. 21, 1997) (unpublished order & judgment). Vogt , as an unpublished

decision of this court, is not binding precedent, see 10th Cir. R. 36.3(A);

however, its relevant facts are closely similar to those in appellant’s case, and we

find it persuasive.

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dealing with revocation of supervised release--we note that supervised release and

probation are not equivalent in this setting and, therefore, those authorities do not

apply here. 

Revocations of probation are not governed by § 3583 but by a separate

provision of the sentencing laws, 18 U.S.C. § 3565. Therefore, appellant’s first

argument that, before its amendment in 1994, § 3583 prohibited the district court

from imposing a term of supervised release after his probation revocation is

inapt. 5

 Appellant does not acknowledge either the provisions of § 3565 or the

district court’s ruling that he was not resentenced in reliance on § 3583, see

Appellant’s App. at 53. Further, the version of § 3565 applicable to appellant’s

resentencing did not limit the sentencing court as did the pre-amendment version

of § 3583. 6
7

See also Vogt , 1997 WL 20125, at **1 (unpublished order and judgment).

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Similarly, this court’s decision in Rockwell, on which appellant relies for

his second argument, is distinguishable from appellant’s case because the

petitioner in Rockwell had been sentenced to a term of supervised release, not

probation. See 984 F.2d at 1113. 7

 Because we conclude that Rockwell does not

apply to the facts of appellant’s case, we do not address counsel’s arguments that

application of Johnson , which overruled Rockwell, would be impermissibly

retroactive in this instance. 

In light of the different sentencing provisions applicable to revocations of

supervised release and revocations of probation, those issues that appellant

properly preserved for appellate review lack merit. Accordingly, we agree

with the district court that appellant has not shown that his former counsel

was ineffective for failing to raise these non-meritorious arguments. See Foster

v. Ward , 182 F.3d 1177, 1186 (10th Cir. 1999), cert. denied, 529 U.S. 1027

(2000). The judgment of the district court dismissing appellant’s § 2255

motion is AFFIRMED.