UNITED STATES COURT OF APPEALS Tenth Circuit Byron White United States Courthouse

1823 Stout Street Denver, Colorado 80294 (303) 844-3157 Patrick J. Fisher, Jr. Elisabeth A. Shumaker Clerk Chief Deputy Clerk March 29, 2000

TO: ALL RECIPIENTS OF THE ORDER AND JUDGMENT RE: 99-5133, United States v. Reyes Filed on March 20, 2000 The order and judgment contains a clerical error on page 6, second line from the bottom, in the sentence which begins: “(I offense level of 31 . . . .” The sentence is corrected to read as follows: The district court eventually sentenced Mr. Reyes at the offense level of 31 which, under the sentencing guidelines, inclu des a term of imprisonment ranging between 188 to 235 months in p rison. A copy of the corrected order and judgment is attac hed. Sincerely, Patrick Fisher, Clerk of Court
By: Keith Nelson Deputy Clerk

encl.*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 20 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. RAMON DELEON REYES, Defendant-Appellant. No. 99-5133 (N.D. Okla.) (D.Ct. No. 98-CV-950-H)

____________________________ ORDER AND JUDGMENT *

Before BRORBY , KELLY , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist 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.

Appellant Ramon DeLeon Reyes, a prisoner appearing pro se , appeals the-2-

district court’s decision denying his motion filed pursuant to 28 U.S.C. § 2255 and request for a certificate of appealability. W e deny his request for a certificate of appealability, and dismiss his appea l.

Mr. Reyes pled guilty to four counts of distributio n of cocaine and one count of distribution of one kilogram of cocaine ( i.e. , Count 5). Following his guilty plea, the district court sentenced him to 20 4 months in prison on each count, to run concurrently. Mr. Reyes did not file a direct appeal.

Mr. Reyes filed a motion to vacate, set aside or co rrect his sentence under § 2255. He alleged his guilty plea was involuntary , unintelligent and unknowing because the district court and his counsel failed t o: (1) advise him Count 5 for distribution of cocaine carried a mandatory minimum sentence of five years; and (2) inform him he could not withdraw his plea if th e court did not accept the government’s sentencing recommendations. He also a lleged ineffective assistance of counsel based on these claims and his claims his attorney failed to “appoint himself with facts concerning [his] criminal history before advising him of the 5 years potential sentence,” and conducted the plea a greement in “bad faith” knowing he would receive a sentence of more than fi ve years.-3-

The district court that presided over Mr. Reyes’ pl ea and sentencing hearings entered an order denying the motion. It d etermined that because Mr. Reyes failed to directly appeal his claims, he coul d not seek redress on collateral review unless he demonstrated: (1) cause for the p rocedural default or actual prejudice from the errors asserted; or (2) actual i nnocence. The court then looked at Mr. Reyes’ ineffective assistance of counsel cla ims to determine if ineffective assistance could excuse his failure to raise his ot her claims on direct appeal. The district court found the court advised Mr. Reyes atthe plea hearing: (1) of the minimum mandatory sentence; and (2) that the court retained final authority to impose his sentence within the United States Senten cing Guidelines. The district court then determined no prejudice resulted from any inaccurate sentence prediction by Mr. Reyes’ counsel because the court “specifically cured any defect ... by providing the proper information.” After de termining Mr. Reyes’ ineffective assistance of counsel claims lacked mer it, the court held Mr. Reyes procedurally defaulted his involuntary plea claims.

On appeal, Mr. Reyes renews the same claims raised in his § 2255 motion. He also raises new issues on appeal, claiming his attorney acted ineffectively by failing to directly appeal his conviction or negoti ate a plea agreement minimizing the charges or counts against him. He also contend s the district court erroneously-4-

determined he must prove his innocence to obtain re lief.

When reviewing the denial of a § 2255 motion, we re view the district court’s legal rulings de novo and its factual findings for clear error. United States v. Cox , 83 F.3d 336, 338 (10th Cir. 1996). We review Mr. Reyes’ ineffective assistance of counsel claims de novo as a mixed question of law and fact. See United States v. Prows , 118 F.3d 686, 691 (10th Cir. 1997). To establish ineffective assistance of counsel, Mr. Reyes must s how his counsel’s performance was deficient and his performance prejudiced his de fense. See Strickland v. Washington , 466 U.S. 668, 687 (1984). We review de novo , as a question of law, the issue of whether a district court complied with Federal Rule of Criminal Procedure 11 before accepting Mr. Reyes’ guilty ple a. United States v. GomezCuevas , 917 F.2d 1521, 1524 (10th Cir. 1990)

We begin our review by noting Fed. R. Crim P. 11 re quires the district court to address Mr. Reyes personally in open courtand inform him of, and determine he understands, the minimum and maximum p ossible penalties provided by law. See Fed. R. Crim. P. 11(c)(1). However, a violation o f Rule 11(c) does not render his plea involuntary. See Fed. R. Crim. P. 11(h). Instead, we apply a harmless error analysis in determining if any varia nce in the Rule 11 requirement-5-

affected his substantial rights. See United States v. Wright , 930 F.2d 808, 810 (10th Cir. 1991). Under Rule 11(h), Mr. Reyes mustdemonstrate “knowledge of the omission or variance from Rule 11 ‘would have c hanged his decision to plead guilty.’” Wright , 930 F.2d at 810 (quoting Gomez-Cuevas , 917 F.2d at 1527.

In this case, the district court informed Mr. Reyes as follows: The maximum sentence the Court can impose upon a finding of gu ilty and a conviction on Counts one, two, three, four an d five of the Indictment is as follows: Count one.... [N]ot more than 20 years imprisonmen t.... Count two.... [N]ot more than 20 years imprisonmen t.... Count three.... [N]ot more than 20 years imprisonm ent.... Count four.... [N]ot more than 20 years imprisonme nt.... Count five. Under 21 U.S.C., Section 841(a)(1), not more than 40 years imprisonment, but not less than five years

.... (Emphasis added). Because the district court began this colloquy by using the term “maximum sentence,” Mr. Reyes claims he though t the five- to forty-year term accounted for only the mandatory maximum sente nce, and therefore, the mandatory minimum would be less than the five years mentioned.

We begin by noting the district court correctly rec ited the maximum and minimum mandatory sentence for 21 U.S.C. § 841(a)(1 ) as “not more than 40-6-

years imprisonment, but not less than five years.” However, even if we find the district court’s precursory use of “maximum sentenc e” without specific reference to the minimum mandatory sentence, is inconsistent with Rule 11, the error is harmless. Both Mr. Reyes’ plea petition and plea a greement stated the term of sentence for Count 5 was “not more than 40 years imprisonment, but not less than five years.” In his plea petition, he also verifie d he understood his plea of guilty may subject him to a minimum sentence. He further verbally acknowledged to the district court in open court that his counsel fully reviewed these documents with him and he understood their contents.

Additionally, in his plea petition, Mr. Reyes verif ied he knew his sentence would be within the sentencing guideline range. Mr . Reyes’ attorney stated, both in certified documentation and at the plea hearing, he advised Mr. Reyes of the possible guideline ranges, which ran between total offense levels of 31 and 34. During the plea hearing, the district court inquire d whether Mr. Reyes understood the sentencing guidelines, and the requirement that , unless he departed from them, he must impose a sentence within the guideline rang es. Mr. Reyes answered affirmatively. The district court eventually sente nced Mr. Reyes at the offense level of 31 which, under the sentencing guidelines, includes a term of imprisonment ranging between 188 to 235 months in p rison. Thus, Mr. Reyes1 Similarly, nothing in the record or in Mr. Reyes’ summary allegations establishes

his attorney acted in “bad faith” because he somehow allegedly knew, but did not share with Mr. Reyes, his knowledge of the five-year minimum sentence.

-7- knew, prior to his plea hearing and at the hearing, that his punishment would be determined in accordance with the sentencing guidel ines, under which the lowest sentence would be 188 months or the equivalent of o ver fifteen years. Because fifteen years is greater than the five-year statuto ry minimum sentence, we find the district court’s omission in clarifying the minimum mandatory sentence had no actual impact on his sentence. Thus, under the cir cumstances presented, we believe the omission could not have had a significa nt influence on his decision to plead guilty. See United States v. Barry , 895 F.2d 702, 704 (10th Cir.), cert. denied, 496 U.S. 939 (1990). Moreover, Mr. Reyes has fai led to show, under these facts, how the district court’s omission affe cted his guilty plea. 1 For these reasons, we hold any omission by the district courtconstituted harmless error, and any deficiency of performance by his counsel on thi s issue did not prejudice Mr. Reyes.

We also reject Mr. Reyes’ contention his counsel an d the district court failed to inform him he could not withdraw his pleaif the court did not accept the government’s sentencing recommendation. In his ple a petition and his plea-8-

agreement, Mr. Reyes five times verified his understanding that sentencing is a matter left exclusively in the province of the cour t. His attorney also certified he advised Mr. Reyes of the same. In addition, in his plea agreement, Mr. Reyes verified he knew the government’s recommendations w ould not be binding on the court, and if the court sentenced him to the maximu m sentence, he could not, for that reason alone, withdraw his guilty plea. There after, the court asked, and Mr. Reyes and his attorney both affirmatively answered, that his attorney reviewed with Mr. Reyes in detail the terms and condition of the plea agreement. Mr. Reyes also acknowledged he knew if he pled guilty h e gave up all defenses, the right to challenge the charges against him, and the claim of not guilty. His attorney also informed the court he explained to Mr . Reyes the plea agreement was not binding on the court and it had the ultimat e decision of the sentence imposed under the guidelines. Under these circumst ances, we find Mr. Reyes was fully aware of the court’s discretion not to acceptthe government’s recommended sentence and his inability to later change his pleafor that reason, and therefore, no deficient performance by either the district cou rt or counsel occurred.

As to Mr. Reyes’ contention his attorney “failed to appoint himself with the facts concerning [his] criminal history before advi sing him of the 5 years potential sentence,” we find nothing in the record to show his attorney’s-9-

performance concerning his criminal history prejudi ced Mr. Reyes. In fact, both Mr. Reyes and his attorney acknowledged in open cou rt that his sentence, as determined under the sentencing guidelines, would d epend on his criminal history, as developed through the probation department. Thu s, regardless of whether his attorney knew of, or discussed with him, his crimin al history, Mr. Reyes was aware when he pled guilty that his criminal history would affect his sentence under the sentencing guidelines.

We also reject Mr. Reyes’ contention the district c ourt improperly determined he must prove his innocence to prevail o n his § 2255 motion. Because Mr. Reyes failed to present his claims on direct ap peal, he must show: (1) cause excusing his procedural default and actual prejudic e resulting from the error of which he complains; or (2) a fundamental miscarriag e of justice will occur if his claims are not addressed. See Medlock v. Ward, 200 F.3d 1314, 1323 (10th Cir. 2000). In order to show the latter, Mr. Reyes mustmake a colorable showing of factual innocence. Id. He has not, and instead admits his involvement in the crimes charged.

Finally, we will not consider issues not raised bef ore the district court. Walker v. Mather (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992). We thereby-10-

decline to address Mr. Reyes’ new contentions his attorney acted ineffectively by failing to directly appeal his conviction or negoti ate a plea agreement minimizing the charges or counts against him.

Thus, under the circumstances presented, we conclud e Mr. Reyes fails to make a substantial showing of the denial of a const itutional right as required by 28 U.S.C. § 2253(c)(2). For these reasons, and sub stantially the same reasons in the district court’s May 4, 1999 Order, we deny Mr. Reyes’ application for a certificate of appealability and DISMISS his appeal.

Entered by the Court: WADE BRORBY United States Circuit Judge