*Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 97-10221

Summary Calendar

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RONALD DAVID SUTHERLAND,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

(3:95-CV-2075)

_________________________________________________________________

June 9, 1998

Before JONES, SMITH, and STEWART, Circuit Judges.

PER CURIAM:*

Appellant Ronald David Sutherland, federal prisoner

number 665770, has been serving a term of 51 months imprisonment

based on his guilty plea to unlawful possession of a machine gun.

He was also sentenced to three years supervised release, which he

may presently be serving. Sutherland did not directly appeal his

conviction or sentence. Instead, in a § 2255 motion, he alleged
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misapplication of U.S.S.G § 5G1.3, regarding concurrent or

consecutive sentences; ineffective assistance of counsel at

sentencing; and numerous other issues. The district court denied

relief. On appeal, we affirm. 

Three categories of issues are raised on appeal. He

alleges first, that the district court committed an ex post facto

violation by applying to Sutherland’s offense a subsequentlyenacted version of the guidelines that prevented him from obtaining

a sentence to run concurrently with a state law offense. Second,

he maintains that counsel was ineffective in representing him at

sentencing because she: (1) failed to present mitigating evidence;

(2) did not make objections to the PSR; (3) failed to consult with

him; (4) did not examine or brief the issue of concurrent

sentences; (5) did not object or appeal the “ambiguous sentence”;

(6) did not know the law regarding U.S.S.G § 4B1.2; (7) did not

investigate the issue of illegally obtained evidence; and (8) did

not argue for a reduction of more than two levels based on

substantial assistance. Sutherland asserts in this connection that

his counsel was “paving the way” to become a prosecuting attorney

and for this reason failed to represent him conscientiously.

Finally, Sutherland suggests that counsel refused to file an appeal

on his behalf.

Sutherland’s ex post facto contention is meritless.

Under either version of the Guidelines § 5G1.3, concerning

consecutive or concurrent sentences, the sentencing court had
3

discretion to impose concurrent sentences, as he did here. United

States v. Hernandez, 64 F.3d 179, 182-83 (5th Cir. 1995). United

States v. Gross, 979 F.2d 1048 (5th Cir. 1993), is cited by

Sutherland but is inapposite, because Gross involved a prior

sentence on a federal charge, which at the time of Gross’s sentence

fell under § 5G1.2. 

To demonstrate ineffective assistance of counsel with

regard to sentencing issues, Sutherland was required to establish

a reasonable probability that but for his counsel’s deficient

performance, his sentence would have been significantly less harsh.

United States v. Seyfert, 67 F.3d 544, 548-49 (5th Cir. 1995). The

report of the magistrate judge, adopted as the district court’s

opinion, carefully refutes all of Sutherland’s contentions either

on the facts or in their consequences for his sentencing decision.

Moreover, there was no constitutionally significant prejudice to

appellant’s sentence from any of the alleged errors.

To the extent Sutherland challenges his guilty plea

because of allegedly ineffective representation of counsel, his

objections are meritless. He was sentenced according to the

Guidelines, and his plea did not become involuntary merely because

he received a sentenced greater than he anticipated. See United

States v. Badger, 925 F.2d 101, 104 (5th Cir. 1991)

(dissatisfaction with a sentence is not grounds for withdrawal of

a guilty plea). To the extent this contention rests on his

assertion that evidence against him should have been suppressed, it
4

is also meritless. He signed a consent to search. He signed a

plea agreement stating that his plea was voluntary, and he contends

that he voluntarily disclosed the existence of the machine gun to

federal agents. Further, his warrantless arrest was lawful, based

as it was both on information that Sutherland possessed a machine

gun illegally and that there was an outstanding burglary arrest

warrant (a crime to which he later pleaded guilty in state court).

Although it appears that all of the above points are

those which Sutherland would have raised on direct appeal without

any more success than they are raised here, Sutherland also asserts

that his counsel failed to file an appeal for him. But this claim

was not adequately raised in the district court, where Sutherland

says only two things about his desire for an appeal. He says there

that counsel “advised him” against appealing and that she was not

going to “file motions and file an appeal simply because she did

not want to look stupid in court.” The magistrate judge

interpreted these complaints as unspecified and conclusory

assertions related to the complaint that Sutherland’s attorney

wanted to be and has now become a prosecutor. Sutherland is an

experienced jail house lawyer, but he never asserted in the

district court that he asked his counsel to appeal, and she refused

to do so, depriving him of his opportunity to appeal. For this

reason, we decline to consider his newly-articulated claim for the

first time on appeal. United States v. Colon-Padilla, 770 F.2d

1328, 1334 n.6 (5th Cir. 1985).
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For the foregoing reasons, the judgment of the district

court is AFFIRMED.