*

This order is not binding precedent, except under the doctrines of law of

the case, res judicata, and collateral estoppel. It may be cited, however, for its

persuasive value consistent with 10th Cir. R. 32.1 and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

March 31, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GREGORY R. SMITH,

Defendant-Appellant.

No. 09-4132

(D.C. No. 2:09-CV-00044-TS)

(D. Utah)

ORDER*

Before HARTZ, SEYMOUR and EBEL, Circuit Judges.

Mr. Gregory Smith, a federal inmate appearing pro se, requests a

Certificate of Appealability (“COA”) to appeal the district court’s denial of his 28

U.S.C. § 2255 motion to vacate, set aside, or correct sentence. Because Mr.

Smith has not made “a substantial showing of the denial of a constitutional right,”

28 U.S.C. § 2253(c)(2), we deny his request for a COA. We grant his request to

proceed in forma pauperis, and we dismiss this appeal.

Mr. Smith pled guilty to two counts of access device fraud in violation of
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18 U.S.C. § 1029, and two counts of aggravated identity theft in violation of 18

U.S.C. § 1028A. In his plea agreement, Mr. Smith waived both his direct and

collateral appeal rights as follows:

(c) Fully understanding my limited right to appeal my sentence, as

explained above, and in consideration of the concessions and/or

commitments made by the United States in paragraph 11 of this plea

agreement, I knowingly, voluntarily and expressly waive my right to

appeal any sentence imposed upon me, and the manner in which the

sentence is determined, on any of the grounds set forth in 18 U.S.C. §

3742 or on any ground whatever, except I do not waive my right to

appeal (1) a sentence above the maximum penalty provided in the

statute(s) of conviction, or (2) a sentence above the high-end of the

guideline range as determined by the Court at sentencing, or in the

event that no such determination is made by the Court, a sentence above

the high-end of the guideline range as set forth in the final presentence

report.

Rec., vol. I at 57 (May 14, 2009 Order denying § 2255 Motion.). 

At sentencing, Mr. Smith was subject to a statutory maximum term of ten

years for the access fraud convictions, see § 1029(c)(1)(A)(i), and a statutorily

mandated sentence of two years for the identity theft convictions, see §

1028A(a)(1). The probation office submitted a Presentence Report calculating

Mr. Smith’s base offense level for the § 1029 offenses at six. The PSR proposed

an addition of a ten-level increase for the amount of loss attributable to Mr.

Smith’s conduct ($120,000 - $200,000), a two-level increase for the number of

victims involved (ten or more), a two-level increase for the use of sophisticated

means, and a two-level increase for the use of another’s means of identification to

unlawfully obtain another identification. The PSR then proposed a three-level
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decrease for acceptance of responsibility under U.S.S.G. § 3E1.1, thereby

yielding a final offense level of nineteen. Given Mr. Smith’s criminal history

category of I, his applicable sentencing guideline range for the § 1029 offenses

alone was between thirty and thirty-seven months. In addition, however, §

1028(a)(b) mandated a consecutive twenty-four month sentence for one of the

aggravated identity theft convictions. As a result, the minimum sentence

applicable to Mr. Smith was fifty-four months. See rec., vol. I at 27 (citing PSR

at 12-13). The district court adopted the PSR’s recommendations and sentenced

Mr. Smith to fifty-four months’ imprisonment. Mr. Smith did not file a direct

appeal.

In his § 2255 petition, Mr. Smith contended the sentencing court’s

inclusion of sentencing level increases exceeded its jurisdiction and violated

Apprendi v. New Jersey, 530 U.S. 466 (2000), because they were based on judgefound facts pursuant to a preponderance of the evidence standard. He also

asserted ineffective assistance of counsel based on his counsel’s failures to raise

the Apprendi issue, to properly calculate the applicable sentencing guideline

range, to object to enhancements, and to advise him he had issues to appeal. The

district court held most of the claims waived by the plea agreement and denied the

others. 

A COA is a jurisdictional prerequisite to our review of a petition for a writ

of habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). We will issue
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a COA only if a petitioner makes “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). Under this standard, a petitioner

must demonstrate “that reasonable jurists could debate whether (or, for that

matter, agree that) the petition should have been resolved in a different manner or

that the issues presented were adequate to deserve encouragement to proceed

further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). 

We note that “a waiver of collateral attack rights brought under § 2255 is

generally enforceable when the waiver is expressly stated in the plea agreement

and where both the plea and the waiver were knowingly and voluntarily made.” 

United States v. Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001). But a waiver

does not bar a § 2255 motion “based on ineffective assistance of counsel claims

challenging the validity of the plea or the waiver.” Id. at 1187. 

In deciding whether an issue was waived, a court conducts a three-pronged

analysis to determine “(1) whether the disputed appeal falls within the scope of

the waiver of appellate [or collateral attack] rights; (2) whether the defendant

knowingly and voluntarily waived his appellate rights; and (3) whether enforcing

the waiver would result in a miscarriage of justice . . . .” United States v. Hahn,

359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per curiam); Cockerham, 237

F.3d at 1191. Given Mr. Smith’s pro se status, his submissions are construed

liberally. See, e.g., de Silva v. Pitts, 481 F.3d 1279, 1283 n.4 (10th Cir. 2007).

Applying Hahn, we agree with the district court that Mr. Smith’s waiver
1

Cunningham v. California, 549 U.S. 270 (2007), on which Mr. Smith

relies, does not hold to the contrary. In Cunningham, the Court applied

Apprendi’s rule to facts permitting imposition of an “upper term” sentence under

California’s determinate sentencing law, which permitted the court there to go

above the maximum statutory sentence allowed by the jury verdict, thereby

violating Apprendi’s bright-line rule. Id. at 288-89. Cunningham does not affect

judicial fact-finding inside the statutory range, as occurred here. See United

States v. Conatser, 514 F.3d 508, 527-28 (6th Cir. 2008).

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covers all of the arguments he made in his § 2255 petition with the exception of

one of his ineffective assistance of counsel claims pursuant to Cockerham, which

we discuss below. First, when Mr. Smith waived his right to appeal his sentence

unless the sentence was “above the maximum penalty provided in the statute(s) of

conviction,” he did not preserve any right to contend “it was constitutionally

impermissible for the district court to engage in factfinding by a preponderance of

the evidence to enhance Defendant’s sentence beyond the Guidelines range that

would otherwise apply based on the facts that Defendant admitted during the plea

hearing.” United States v. Green, 405 F.3d 1180, 1189 (10th Cir. 2005). In any

event, Mr. Smith wrongly assumes that the Supreme Court’s decision in Apprendi

applies to this case – it does not. Apprendi applies only when a defendant is

sentenced beyond the statutory maximum applicable to his crimes of conviction,

see Apprendi, 530 U.S. at 490, which did not occur here. See Green, 405 F.3d at

1194 (The statutory maximum is “the upper limit of punishment that Congress has

legislatively specified for the violation of a given statute.”).1

Second, two of Mr. Smith’s ineffective assistance of counsel claims, based
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on his counsel’s failure to object to the content of the PSR and to advise Mr.

Smith regarding his ability to appeal, were within the scope of the waiver because

neither claim challenged the validity of the plea or the waiver. See Cockerham,

237 F.3d at 1187; see rec., vol. I. at 62. Substantially for the reasons given by the

district court, we agree with its determination that “the majority of this collateral

appeal is within the scope of the Petitioner’s waiver, that the waiver was knowing

and voluntary, and that enforcing the waiver would not result in a miscarriage of

justice . . . .” Rec., vol. I at 62.

Finally, we turn to Mr. Smith’s claim that defense counsel’s miscalculation

of the applicable sentencing guideline constituted ineffective assistance that

rendered his plea unknowing and involuntary under Cockerham. We take note of

our well-established precedent that in general “miscalculation or erroneous

sentence estimation by a defense counsel is not a constitutionally deficient

performance rising to the level of ineffective assistance of counsel.” United

States v. Gordon, 4 F.3d 1567, 1570-71 (10th Cir. 1993); accord United States v.

Silva, 430 F.3d 1096, 1099 (10th Cir. 2005) (“[S]tanding alone, an attorney’s

erroneous sentence estimate does not render a plea involuntary.”). Moreover,

even if counsel’s alleged error did constitute constitutionally deficient

performance, Mr. Smith has failed to show his defense was thereby prejudiced as

required by Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish

prejudice in the context of a guilty plea, Mr. Smith must show that but for
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counsel’s deficient performance, he would not have pled guilty but instead

“would have insisted on going to trial.” United States v. Taylor, 454 F.3d 1075,

1080 (10th Cir. 2006); see also United States v. Harms, 371 F.3d 1208, 1211

(10th Cir. 2004). Mr. Smith’s pleadings make no such showing. Instead he

repeatedly asserts that he “do[es] not wish to withdraw [his] plea agreement.” 

Rec., vol. I at 7; see id. at 21 (“It is critical that the Court understand that I am

not suggesting that I wish to withdraw my plea. I pled guilty because I was

guilty.”). Accordingly, we conclude that Mr. Smith has failed to show the denial

of a constitutional right.

For these reasons, we DENY Mr. Smith’s request for a COA. We GRANT

his motion to proceed in forma pauperis, and we DISMISS this appeal.

ENTERED FOR THE COURT

Stephanie K. Seymour

Circuit Judge