FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 MAY 30, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-14234

Non-Argument Calendar

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D. C. Docket Nos. 06-02153-CV-BBM-1 & 05-00056 CR-1-1

RONUK R. GENGE, 

Petitioner-Appellant, 

versus 

UNITED STATES OF AMERICA, 

Respondent-Appellee. 

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Appeal from the United States District Court

for the Northern District of Georgia

_________________________

 (May 30, 2008)

Before TJOFLAT, ANDERSON and HULL, Circuit Judges.

PER CURIAM:

On June 17, 2005, petitioner pled guilty pursuant to a plea agreement to
 This was the fourth count of the indictment returned against petitioner. The other

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counts charged petitioner with using the internet to induce a minor to engage in criminal sexual

activity, traveling in interstate commerce to have sex with a minor, and crossing a state line with

intent to engage in a sexual act with a child under the age of 12. 

 This was consistent with the parties’ joint recommendation under the plea agreement. 2

 According to the presentence investigation report, the term of the Guidelines range for 3

supervised release was two years to life. The parties’ plea agreement did not address the issue of

supervised release. At sentencing, the Government, in response to the court’s inquiry as to an

appropriate supervised release term, said that the term should be “far above the two [year term]

which would be the guideline minimum . . . anything under ten years wouldn’t be sufficient.” 

 The plea agreement, in paragraph 10, contained a limited sentence-appeal waiver which

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is not explicitly implicated in this appeal. 

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knowingly transporting and shipping in interstate commerce child pornography, in

violation of 18 U.S.C. § 2252A(a)(1). The district court sentenced him on 1

September 7, 2005, to a prison term of 121 months, which was at the low end of

the Sentencing Guidelines sentence range of 121 to 151 months, and eight years of 2

supervised release. Petitioner did not object to his sentence; nor did he appeal it. 

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On September 8, 2006, petitioner moved the district court pursuant to 28 U.S.C. § 2255

to vacate his sentence on the ground that the Government’s recommendation as to

the term of supervised release breached the plea agreement. The court denied his

motion, concluding that under the plain error doctrine, the motion was due to be

denied because, at the sentencing hearing, petitioner voiced no objection to the

term of supervised release after the court imposed it. Petitioner filed a notice of

appeal, and the district court issued a certificate of appealability (“COA”) on one
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issue: whether the Government breached the plea agreement when it recommended

a term of supervised release higher than the low end of the applicable Guidelines

range. 

Petitioner argues that pursuant to the plea agreement, he expected to receive

zero years of supervised release because the term “guidelines range,” as it was used

in the agreement, included any applicable term of supervised release. He concedes

that he did not object at sentencing to the alleged breach of the plea agreement, but

argues that he is nevertheless permitted to raise the alleged breach in a § 2255

motion and that the plain error standard of review applies. 

Procedural issues that must be resolved before we can address the

underlying claim specified in a COA are presumed to be encompassed within the

COA. McCoy v. United States, 266 F.3d 1245, 1248 n.2 (11th Cir. 2001). See

also Wright v. Sec’y Dep’t of Corr., 278 F.3d 1245, 1258 (11th Cir. 2002)

(explaining that where a COA is granted with respect to the merits of a

constitutional claim, we assume that the COA encompasses any threshold

procedural issues that must be addressed before reaching the merits, even if the

COA is silent with respect to those threshold issues). 

A defendant who fails to object at the trial court level to error he believes the

court has committed or fails to raise such objection on appeal is procedurally
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barred from presenting his objection in a motion subsequently filed under 22

U.S.C. § 2255 absent a showing of cause and prejudice or a fundamental

miscarriage of justice. See United States v. Frady, 456 U.S. 152, 166-68, 102 S.Ct.

1584, 1593-94, 71 L.Ed.2d 816 (1982); Mills v. United States, 36 F.3d 1052, 1055

(11th Cir. 1994). We have applied the cause and prejudice standard to a § 2255

claim that the government breached the parties’ plea agreement. See Martorana v.

United States, 873 F.2d 283, 285 (11th Cir. 1989) (applying cause and prejudice

standard where, despite having knowledge of the contents of the plea agreement,

the defendant did not object at sentencing on the ground that the government

breached the plea agreement). A prisoner collaterally attacking his conviction can

establish cause “if he can show that ‘some objective factor external to the defense

impeded counsel’s efforts to comply with the . . . procedural rule . . . .’” Reece v.

United States, 119 F.3d 1462, 1465 (11th Cir. 1997) (quoting Murray v. Carrier,

477 U.S. 478, 488, 106 S.Ct. 2639, 2645-46, 91 L.Ed.2d 397 (1986)). 

We cannot perceive how petitioner could show cause in this case, much less

prejudice. When, during the sentencing hearing, the court asked the prosecutor if

the Government had a recommendation regarding supervised release, the

prosecutor told the court: “I don’t believe [supervised release was] one of the 

things we discussed in the plea agreement.” This obviously meant two things: (1)
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the parties, in negotiating the plea agreement, did not discuss supervised release,

and (2) the plea agreement therefore did not address the matter. 

Contrary to what the prosecutor told the court, petitioner represents in his §

2255 motion that the plea agreement did address the matter of supervised release,

and he asserts that the Government breached the agreement by not recommending

a two-year term of supervised release, the term set at the low end of the Guidelines

range. If petitioner and his attorney actually believed that the plea agreement

required the Government to make that low-end recommendation, his attorney

should have intervened immediately, taken issue with what the prosecutor had said, 

and informed the court that the Government was obligated to recommend a twoyear term of supervised release. The attorney did not intervene, however, and

when the court imposed an eight-year term voiced no objection at all. 

Were we to remand the case to the district court so that petitioner could

show cause why his attorney did not object to what the prosecutor told the court,

what excuse could petitioner offer for counsel’s failure to intervene? Petitioner has

not claimed in his § 2255 motion that counsel’s failure to intervene and challenge

the prosecutor’s statement, or failure to object to the eight-year term after the court

imposed it, constituted ineffective assistance under the Sixth Amendment. And we

cannot imagine that some objective factor external to the defense would cause
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counsel to stand silent. In sum, there is no need to remand this case to permit

petitioner to attempt to establish cause, and resulting prejudice, for counsel’s

silence or a miscarriage of justice. Petitioner’s breach-of-the-plea agreement claim

is procedurally defaulted. The court was therefore required to deny petitioner the §

2255 relief he seeks.

AFFIRMED.