## 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. Da nce, 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, th is panel has determined

unanimously to grant the parties’ request for a dec ision 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. -2- Paul Garfinkle appeals from the district court’s or der 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 moti on 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’ p robation 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 He was subsequently charged with violating conditions of his probation and his probation was revoked.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 followedby 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 See United States v. Garfinkle , No. 98-4040, 1998 WL 781022, at **2 (10th Cir. No v. 6, 1998) (unpublished order and judgment). In his § 2255 motion, appellant did not challenge t he imprisonment portion of his new sentence, but contended that the sentenc ing court could not legally impose supervised release after revocation of his p robation. After dismissing the2 Appellant also contended, before the district court , that upon resentencing

the court should have given him credit for time spe nt 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 t he argument on appeal, it is waived. See State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994). -3- motion, the district court granted appellant a cert ificate of appealability on the issue. 2 See 28 U.S.C. § 2253(c)(1)(B). We note that, while app ellant did not raise this issue on direct appeal from his resenten cing, he alleges that his counsel was ineffective for failing to raise it, a contenti on 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 c ontends 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 courtfrom imposing3 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, appell ant failed to identify in his opening brief where his arguments were raised and r uled on by the district court. See 10th Cir. R. 28.2(C)(2). -4- 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 thathis 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 e quivalent, relying on introductory comments to Chapter 7 of the United St ates Sentencing Guidelines Manual. In this circuit, theories raised for the f irst 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 authorities5 Appellant also argues that, because he was sentence d to two years’

imprisonment, the maximum penalty available for his revocation under § 3583, the district court could not add a term of supervis ed release. This argument was not raised until appellant’s objections to the magi strate judge’s report and is therefore waived. Marshall , 75 F.3d at 1426.

6 Although we have no previous published authority onpoint, 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. -5- dealing with revocation of supervised release--we n ote that supervised release and probation are not equivalent in this setting and, t herefore, 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 hi s probation revocation is inapt. 5 Appellant does not acknowledge either the provisi ons 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. 67 See also Vogt , 1997 WL 20125, at **1 (unpublished order and judg ment). -6- Similarly, this court’s decision in Rockwell, on which appellant relies for his second argument, is distinguishable from appell ant’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 a ddress counsel’s arguments that application of Johnson , which overruled Rockwell, would be impermissibly retroactive in this instance. In light of the different sentencing provisions app licable to revocations of supervised release and revocations of probation, th ose issues that appellant properly preserved for appellate review lack merit. Accordingly, we agree with the district court that appellant has not show n 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 dismiss ing appellant’s § 2255 motion is AFFIRMED.