* This order and judgment is not binding precedent, except under the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 s ubmitted without oral argument. 

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

### JUL 19 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee, vs. ROBERT D. SPARROW, Defendant - Appellant. No. 98-4192 (D.C. No. 97-CV-359-K) (D. Utah)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and BRISCOE , Circuit Judges. **
Mr. Sparrow, appearing pro se and in forma pauperis , seeks a certificate of appealability to appeal from the denial of his moti on to vacate, set aside or correct his sentence. See 28 U.S.C. § 2255. He also seeks a writ of mandamu s requiring the district judge to show cause, in so many words, for not granting his § 2255 motion. We deny a certificate of appealability, di smiss the appeal and deny the- 2 -

petition for a writ of mandamus.

Background In November 1995, Mr. Sparrow plead guilty to one c ount of wire fraud. He later unsuccessfully sought to withdraw his plea , and was sentenced to twentyfour months imprisonment followed by three years supervised release. Mr. Sparrow filed a notice of appeal on February 6, 199 7, and on May 7, 1997, he filed his first § 2255 motion. After counsel filedan Anders brief raising four issues, Mr. Sparrow moved to dismiss his appeal ove r the government’s objection, and that motion was granted on December 4, 1997. O n December 17, 1997, Mr. Sparrow filed another § 2555 motion. The magistrat e judge consolidated the two motions for disposition. In his motions, Mr. Sparrow sought relief based upo n (1) improper broadening of the count of conviction to include ai ding and abetting, (2) expiration of the limitations period, (3) incorrectapplication of the sentencing guidelines based upon an inaccurate presentence rep ort, (4) ineffective assistance of counsel, and (5) cruel and unusual punishment. The magistrate judge correctly determined that all claims, save ineffective assist ance of counsel, were procedurally barred given the voluntary withdrawal of the direct appeal. See II R. doc. 60. The magistrate judge determined that Mr. Sparrow’s dissatisfaction with- 3 -

the appellate brief submitted by counsel and his la ck of confidence in the appeal did not constitute “cause” and Mr. Sparrow had not demonstrated factual innocence. The magistrate judge rejected the ineffective assis tance of counsel claims on the merits, holding that (1) Mr. Sparrow had notdemonstrated a reasonable probability that he would have proceeded to trial b ut for counsel’s purportedly inaccurate estimate of sentence, (2) an erroneous e stimate does not constitute ineffective assistance of counsel, particularly whe re the plea colloquy belied Mr. Sparrow’s assertions, (3) the successful efforts of Mr. Sparrow and his counsel that resulted in a lower loss calculation than cont ained in the presentence report did not constitute deficient performance, and (4) M r. Sparrow’s voluntary withdrawal of his appeal precluded his ineffective assistance of appellate counsel claim. The district court adopted the report and r ecommendation over Mr. Sparrow’s objections. See II R. doc. 69.

Discussion 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- 4 -

plea was counseled and voluntary. See id. A guilty plea must be knowing and voluntary, the product of a voluntary and intellige nt choice among a defendant’s alternatives. See Parke v. Raley , 506 U.S. 20, 28-29 (1992). On appeal, Mr. Sparrow argues that (1) he was denie d effective assistance of counsel because he was not adequately advised ab out the offense and the rights being waived, (2) the presentence report was fatall y flawed with clearly inadequate information, and (3) the count of convic tion is time-barred. To establish a claim of ineffective assistance of c ounsel, a defendant must 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 plea may be involuntary where an attorney materi ally misrepresents the consequences of the plea; however, standing alone, an attorney’s erroneous sentence estimate does not render a plea involuntary. See Laycock v. New Mexico , 880 F.2d 1184, 1186 (10th Cir. 1989); see also Lasiter v. Thomas , 89 F.3d 699, 702-03 (10th Cir. 1996); United States v. Gordon , 4 F.3d 1567, 1570-711 Even assuming that this claim was not waived, the indictment was filed

in November 1994 alleging conduct occurring on or about April 1992. - 5 - (10th Cir. 1993); United States v. Rhodes , 913 F.2d 839, 842-44 (10th Cir. 1990). The transcript of the change of plea hearing fully supports adequate advice by the district court and a knowing and voluntary plea. See III R. doc. 19, tab 5 at 5 (Tr. 11/16/95). As the district court explained atthe hearing on Mr. Sparrow’s motion to withdraw his guilty plea, information lat er appearing in the presentence report concerning the amount of the loss (or crimin al history) does not render the plea unknowing and involuntary, see VII R. Tr. 6/28/96 at 6, nor does counsel’s optimistic estimate on incomplete information regar ding the sentence. Mr. Sparrow contends that the presentence report wa s inaccurate because no loss was occasioned; however, the district courtemployed its own methodology and did not accept the presentence repo rt. Given that the district court need only make a reasonable estimate of the l oss, see USSG § 2F1.1, comment. (n.8), and its findings would be subject t o review for clear error, see United States v. Moore , 55 F.3d 1500, 1501 (10th Cir. 1995), Mr. Sparrow’ s contention cannot furnish a basis for an ineffectiv e assistance of counsel claim. Nor can his erroneous claim that the count of convi ction is beyond the five-year limitations period. 1 See 18 U.S.C. § 3282. This point was raised on appeal by appellate counsel and abandoned when the appeal was dismissed at Mr. Sparrow’s- 6 -

insistence. Finally, a request for mandamus relief is inappropriate as a supplement a collateral attack brought under § 2255 . See Carter v. Attorney General , 782 F.2d 138, 141 (10th Cir. 1986). APPEAL DISMISSED. Petition for Writ of Mandamus DENIED.

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