* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered su bmitted without oral argument. 

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

### MAR 4 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, vs. MANUEL DEJESUS SORIA, Defendant - Appellant. No. 98-6265 (D.C. No. CV-98-314) (W.D. Okla.)

ORDER AND JUDGMENT *

Before PORFILIO , KELLY , and HENRY , Circuit Judges. **
Mr. Soria, an inmate appearing pro se, seeks to app eal from the district court’s denial of his motion to vacate, set aside o r correct his sentence. See 28 U.S.C. § 2255. The district court denied the motio n, leave to proceed on appeal in forma pauperis and a certificate of appealability. We deny a certificate of appealability, 28 U.S.C. § 2253(c)(2), and dismiss the appeal.- 2 -

Mr. Soria was charged in a three-count indictment w ith distribution of heroin, possession with intent to distribute heroin , and carrying a firearm in relation to a drug trafficking crime. He plead gui lty to the second count and was sentenced to 168 months imprisonment. He attemptedto file an appeal, but it was dismissed as untimely. See R. doc. 39. A plea of guilty and a conviction “comprehend all o f the factual and legal elements necessary to sustain a binding, final judg ment of guilt and a lawful sentence.” United States v. Broce , 488 U.S. 563, 569 (1989). Once a judgment of conviction has become final, a collateral attackordinarily is foreclosed if the plea was counseled and voluntary. See id. On appeal, Mr. Soria argues that his counsel was in effective (1) for not being truthful about the nature of the case and the potential punishment, (2) in not filing a motion under 18 U.S.C. § 201(c)(2), (3) inviolating Fed. R. Crim. P. 11, along with the district court, and (4) in failing t o advise him of a right to appeal. He also argues that the district court erred (5) in not departing from the Guidelines based upon sentencing entrapment, and (6 ) in sentencing him for conduct not foreseeable. Mr. Soria contended belowthat his plea was involuntary, not only due to counsel’s erroneous ad vice, but also due to his lack of understanding of the proceedings. To establish a claim of ineffective assistance of c ounsel, a defendant must- 3 -

show (1) that counsel committed errors so serious that the defendant did not receive the counsel guaranteed by the Sixth Amendme nt, and (2) that counsel’s performance was so deficient that the defendant did not receive a fair trial. See Strickland v. Washington , 466 U.S. 668, 687 (1984). In the guilty plea con text, a defendant must show that counsel’s performance fell below an objective standard of reasonableness and that, but for counsel’s error , the defendant would have insisted upon going to trial. See Hill v. Lockhart , 474 U.S. 52, 58-59 (1985). A guilty plea must be knowing and voluntary, the pr oduct of a voluntary and intelligent choice among a defendant’s alternat ives. See Parke v. Raley , 506 U.S. 20, 28-29 (1992). A plea may be involuntary w here an attorney materially misrepresents the consequences of the plea; however , standing alone, an attorney’s erroneous sentence estimate does not ren der a plea involuntary. See Laycock v. New Mexico , 880 F.2d 1184, 1186 (10th Cir. 1989). Mr. Soria claims that his plea was involuntary because his counsel estimated the range of imprisonment between five an d seven-and-one-half years under the Guidelines. He contends that the stipulated drug quantity in the plea agreement (700-900 grams) and that used in the pres entence report (739 grams) lacked a factual basis and that no one with any bac kground in the Sentencing Guidelines would have accepted the plea agreement. Thus, he challenges the performance of counsel.- 4 -

The plea hearing indicates that counsel’s estimate was based upon an incomplete criminal history, specifically that Mr. Soria was on probation for a DUI conviction. Mr. Soria was advised of the maxim um and minimum punishment, the court’s role in determining the sentence under the Sentencing Guidelines, and the importance of drug quantity andcriminal history in sentencing. See Plea Tr. at 8-12 (Apr. 22-23, 1997). In similar c ircumstances, we have held that an erroneous estimate attributabl e to a more extensive criminal history does not render a plea involuntary, nor ren der counsel’s performance deficient. See United States v. Rhodes , 913 F.2d 839, 842-44 (10th Cir. 1990);

see also United States v. Williams , 118 F.3d 717, 718 (10th Cir. 1997); Lasiter v. Thomas , 89 F.3d 699, 702-03 (10th Cir. 1996); United Stat es v. Gordon , 4 F.3d 1567, 1570-71 (10th Cir. 1993). As for the stipulated drug quantity, the record is replete with Mr. Soria’s agreement to it. Under U.S.S.G. § 6B1.4, the distr ict court is to consider the stipulation, the results of the presentence report and any other pertinent information in determining a factual basis for the sentence. Apparently, the district court did so. Mr. Soria contends that the government’s evidence that he distributed six grams of heroin per day for five mo nths is wholly incredible and that his attorney should have performed more invest igation and challenged it. Keeping in mind that the government is required to prove sentencing drug- 5 -

quantity only by a preponderance of the evidence, s ee United States v. Cruz Camacho , 137 F.3d 1220, 1225 (10th Cir. 1998), counsel’s a ffidavit that quantity was not challenged because counsel viewed Mr. Soria ’s defense as unpersuasive,

see R. doc. 48, ex. 6 at 4, is precisely the type of t actical decision that does not render counsel’s performance ineffective. See Strickland , 466 U.S. at 689. Mr. Soria’s ineffective assistance claims also mustbe rejected for lack of prejudice. He has not shown that he would have ins isted on going to trial, but for counsel’s alleged errors. Indeed, Mr. Soria conced es his guilt as to the first and second counts of the indictment. As noted by the d istrict court and by defense counsel, had Mr. Soria been tried and convicted of the offenses contained in the indictment, resolution of the sentencing issues, in cluding prior criminal history, would have been required. Also, significant advant ages resulted from the plea agreement–dismissal of serious state charges and el imination of a five-year consecutive sentence under the 18 U.S.C. § 924(c) c ount. Mr. Soria also contends that the government violate d the anti-gratuity provision, 18 U.S.C. § 201(c)(2), by relying upon two informants in ascertaining drug quantity and the scope of the enterprise. Thi s argument was not raised below and is waived. See Tele-Communications, Inc. v. Commissioner of Internal Revenue , 104 F.3d 1229, 1233 (10th Cir. 1997). Also, the circuit has adopted a contrary construction of the statute. Se e United States v. Singleton ,- 6 -

No. 97-3178, 1999 WL 6469 (10th Cir. Jan. 8, 1999) (en banc). Mr. Soria next contends that the district court did not comply with Fed. R. Crim. P. 11(c)(1) (advice to defendant concerning t he charge) and 11(f) (factual basis for the plea). We have reviewed the plea col loquy; the district court was exacting in its compliance. Moreover, we are in ag reement with the district court that Mr. Soria has not overcome the presumption cre ated by record that he understood the proceedings as interpreted. See Blackledge v. Allison , 431 U.S. 63, 74 (1977). Indeed, the district court tried to ascertain Mr. Soria’s proficiency in English and Spanish and then recessed the procee dings for a day to allow for the interpreter and Mr. Soria to go over the plea a greement. See Plea Tr. at 3-5 (Apr. 22, 1997). Mr. Soria also contends that his counsel was ineffe ctive because his counsel failed to advise Mr. Soria of a right to fi le a notice of appeal and to represent Mr. Soria on appeal. The district court informed Mr. Soria of his right to appeal after sentencing. See Sentencing Tr. at 9 (Aug. 26, 1997). We have held that “[a]n attorney has no absolute duty in ev ery case to advise a defendant of his limited right to appeal after a guilty plea. ” See Laycock , 880 F.2d at 1188. Moreover, Mr. Soria’s ineffectiveness and voluntari ness claims have now been considered in the context of determining whether to grant a certificate of appealablity.- 7 -

Next, Mr. Soria contends that the district court sh ould have reduced the stipulated quantity because it was the product of s entencing entrapment and that his counsel was ineffective for not raising this po int. In this circuit, we analyze such claims using an “outrageous governmental condu ct” test. United States v. Lacey , 86 F.3d 956, 963 (10th Cir. 1996). The facts rel ied upon here, a second buy, do not implicate the doctrine. Counsel is notrequired to pursue meritless theories. Mr. Soria argues that he was sentenced based upon q uantities that were neither reasonably foreseeable nor relevant conduct . See USSG § 1B1.3(a)(1)(B). Mr. Soria’s arguments necessarily address his own a cts and omissions, plainly relevant conduct, see USSG § 1B1.3(a)(1)(A), rather than jointly undertaken criminal activity. This argument is without merit. Finally, Mr. Soria contends that the district courtshould have held an evidentiary hearing. The district court did not ab use its discretion given the state of the record. See Lasiter , 89 F.3d at 702-04 (10th Cir. 1996). We are in agreement with the district court’s resolution on a ll other points not addressed in this order and judgment. Because Mr. Soria has failed to make a substantial showing of the denial of a constitutional right, 28 U.S.C. § 2253(c)(2), we DENY him a certificate of- 8 -

appealability and DISMISS the appeal.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge