* This order and judgment is not binding precedent, e xcept under the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

### FEB 23 1999 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. SHERWOOD ALVIN LYLES, JR., Defendant-Appellant. No. 97-6286 (D.C. No. 96-CR-108) (W.D. Okla.)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BARRETT , and TACHA, Circuit Judges.

Mr. Sherwood A. Lyles pled guilty to one count of c onspiracy to distribute cocaine and crack in violation of 21 U.S.C. § 846. On appeal, Mr. Lyles argues that the district court erred in (1) denying his re quest to withdraw his guilty plea; (2) finding him accountable for one-half kilogram o f crack; and (3) denying his1 After examining the briefs and appellate record, th is panel has determined

unanimously to honor the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

-2- request for a downward departure. We affirm. 1 Mr. Lyles was a member of a crack distribution ente rprise, the Main Street Mafia Crips (MSMC), which transported cocaine from California to Oklahoma for distribution. Around June 22, 1995, Mr. Lyles and Mr. Pete Monroe both traveled separately from Los Angeles to Oklahoma City. Mr. Monroe transported one-half kilogram of cocaine with him. This cocaine was coo ked into crack and sold. Mr. Lyles sold one-half ounce of crack at two differentlocations before he was arrested. In exchange for dismissal of all other counts again st him, Mr. Lyles pled guilty to one count of conspiracy. In his petition to enter a plea agreement, Mr. Lyles recognized that his maximum sentence could be life imprisonment, that his sentence would be “solely a matter for the judge to decide,” and that the judge is required to consider all circumstances including re levant conduct and indictment charges to which Mr. Lyles did not plead. Rec., vo l. I., doc. 419, at 3. The district court reviewed the plea agreement and aske d a series of questions to assure that he understood the proceedings. After reviewin g his pre-sentence report four months later, however, Mr. Lyles moved to withdraw his plea. He also changed-3-

counsel. The district court found that Mr. Lyles’ plea was knowing and voluntary and denied his motion. Rec., vol. I, doc. 763. During sentencing, the district court found Mr. Lyl es responsible under relevant conduct for the half kilogram of cocaine M r. Monroe brought for sale by the conspirators. The court also found that Mr. Ly les was a full participant in the drugs sales force and was not eligible for a downward adjustment for playing a minor role. I. Guilty Plea Mr. Lyles argues he should have been allowed to withdraw his guilty plea because his counsel was ineffective. He asserts se veral counsel errors: his counsel misrepresented his presentencing report; negotiatedan inadequate plea agreement; and inadequately informed him of the consequences o f the plea. We review a challenge to a guilty plea based on a c laim of ineffective assistance of counsel using the two-part test annou nced in Strickland v. Washington , 466 U.S. 668 (1984); see United States v. Gordon , 4 F.3d 1567, 1570 (10th Cir. 1993). A defendant must establish that his counsel's performance objectively falls below the standard of reasonablen ess and that the deficient performance was prejudicial. Id. To show prejudice in a plea agreement, the defendant must establish that “‘but for his counsel ’s errors, he would not have pleaded guilty and insisted on going to trial.’” Id. (quoting Hill v. Lockhart , 474-4-

U.S. 52, 59 (1985)). Mr. Lyles’ contention that his counsel’s misreprese ntation of his sentencing range constituted ineffective assistance is withoutmerit. He makes the same arguments which we rejected in Gordon , where we held that “[a] miscalculation or erroneous sentence estimation by defense counsel is not a constitutionally deficient performance rising to the level of ineffective assi stance of counsel.” Id. We also held that since the defendant was informed about th e uncertain nature of sentencing predictions, his mere allegations of pre judice were insufficient to establish the second prong of Strickland

. See id. at 1571. In his petition to enter a plea, Mr. Lyles acknowledged that he understood sentencing would be discretionary, could differ from any calculations o f the attorney, and could include other relevant conduct. Under these circumstances, we conclude Mr. Lyles has not adequately shown prejudice. Mr. Lyles’ next arguments are also dispensable unde r the Strickland test. He expresses his dissatisfaction with his plea agre ement and argues that he was not adequately informed by counsel about the consequenc es of the plea. But under the first prong, Mr. Lyles proffers no evidence beyond mere allegations that his counsel conducted himself outside the range of a co mpetent attorney. To the contrary, the plea record rebuts Mr. Lyles’ complai nts. During the plea proceedings, the court asked him about the sufficie ncy of his counsel, to which-5-

Mr. Lyles responded with satisfaction. The record also shows that counsel reviewed the plea agreement with Mr. Lyles, and that the plea limited Mr. Lyles’ responsibility for the relevant conduct of his coco nspirators to a short period rather than the whole ten months of the conspiracy, thereb y reducing his potential liability from over 15 kilograms of cocaine to one- half kilogram. The district court duly noted during the plea hearing the great advantage this gave Mr. Lyles in addition to the dismissal of the other charges pend ing against him. Mr. Lyles has not established his counsel was ineffective under the Strickland test. We review the district court’s denial of a motion t o withdraw a guilty plea for abuse of discretion. See United States v. Graves , 106 F.3d 342, 343 (10th Cir. 1997). It is established that one who enters a gui lty plea has no right to withdraw it unless the trial court acted unjustly or unfairl y. See United States v. Barker , 579 F.2d 1219, 1223 (10th Cir. 1978). Where Mr. Lyles’ claims of ineffective assistance of counsel has failed, he also fails to show that the district court acted unfairly or unjustly in denying his motion to withd raw his guilty plea on that basis. See Gordon , 4 F.3d at 1573. We are further persuaded the rec ord shows Mr. Lyles voluntarily and knowingly entered into the plea. T he district court did not abuse its discretion in denying his motion to withdraw hi s guilty plea. II. Kilogram of Cocaine Mr. Lyles objects to being held responsible for one -half kilogram of-6-

cocaine. He argues that he only sold one-half ounc e and was not involved with the remaining amount of cocaine Mr. Monroe transported to Oklahoma City. We review these factual findings for clear error, givi ng deference to the district court's application of the sentencing guidelines to the fac ts. Questions of law regarding the application of the guidelines are reviewed de n ovo. See United States v. Lacey , 86 F.3d 956, 967 (10th Cir. 1996). The Sentencing Guidelines provide that all relevantconduct should be taken into account at sentencing. U.S.S.G. § 1B1.3(a)(1) (B) provides that relevant conduct includes “all reasonably foreseeable acts a nd omissions of others in furtherance of the jointly undertaken criminal acti vity.” The district court found that Mr. Lyles by his plea was an admitted member o f the cocaine and crack conspiracy. The court also found that Mr. Lyles wa s aware of the one-half kilogram of cocaine and that it was distributed dur ing Mr. Lyles’ active tenure as a crack salesman. Our review of the record, includin g relevant portions of the transcript of the trial of Mr. Lyles’ coconspirator s, persuades us it was reasonably foreseeable to Mr. Lyles that at least the one-half kilogram of cocaine brought in by Mr. Monroe was being distributed by Mr. Lyles’ c oconspirators.-7- III. Downward Departure for Minor Role Mr. Lyles asserts he should have received a reducti on for his minor role in the conspiracy to reflect the brevity of his ten-day stay in Oklahoma City. We review the district court’s determination that Mr. Lyles was not a minor participant as a finding of fact under the clearly erroneous st andard, giving due deference to the court’s application of the Sentencing Guideline s. See United States v. Ballard, 16 F.3d 1110, 1114 (10th Cir. 1994). The record re flects Mr. Lyles spent his ten days actively involved in selling crack along with his coconspirators. This depth of participation convinces us the district court di d not err in denying Mr. Lyles a deduction for a minor role in the conspiracy, despi te the brevity of his stay. Finally, Mr. Lyles contends he should have receiveda discretionary downward departure under U.S.S.G § 5K2.0. Because Mr. Lyles failed to raise this issue in the district court, we decline to con sider it on appeal. See United States v. Simpson , 152 F.3d 1241, 1249 n.4 (10th Cir. 1998). In conclusion, we AFFIRM the district court in all its proceedings. ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge