UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-10221
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RONALD DAVID SUTHERLAND,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
(3:95-CV-2075)
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June 9, 1998
Before JONES, SMITH, and STEWART, Circuit Judges.
PER CURIAM:*
Appellant Ronald David Sutherland, federal prisoner
number 665770, has been serving a term of 51 months imprisonment
based on his guilty plea to unlawful possession of a machine gun.
He was also sentenced to three years supervised release, which he
may presently be serving. Sutherland did not directly appeal his
conviction or sentence. Instead, in a § 2255 motion, he alleged
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
misapplication of U.S.S.G § 5G1.3, regarding concurrent or
consecutive sentences; ineffective assistance of counsel at
sentencing; and numerous other issues. The district court denied
relief. On appeal, we affirm.
Three categories of issues are raised on appeal. He
alleges first, that the district court committed an ex post facto
violation by applying to Sutherland’s offense a subsequently-
enacted version of the guidelines that prevented him from obtaining
a sentence to run concurrently with a state law offense. Second,
he maintains that counsel was ineffective in representing him at
sentencing because she: (1) failed to present mitigating evidence;
(2) did not make objections to the PSR; (3) failed to consult with
him; (4) did not examine or brief the issue of concurrent
sentences; (5) did not object or appeal the “ambiguous sentence”;
(6) did not know the law regarding U.S.S.G § 4B1.2; (7) did not
investigate the issue of illegally obtained evidence; and (8) did
not argue for a reduction of more than two levels based on
substantial assistance. Sutherland asserts in this connection that
his counsel was “paving the way” to become a prosecuting attorney
and for this reason failed to represent him conscientiously.
Finally, Sutherland suggests that counsel refused to file an appeal
on his behalf.
Sutherland’s ex post facto contention is meritless.
Under either version of the Guidelines § 5G1.3, concerning
consecutive or concurrent sentences, the sentencing court had
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discretion to impose concurrent sentences, as he did here. United
States v. Hernandez, 64 F.3d 179, 182-83 (5th Cir. 1995). United
States v. Gross, 979 F.2d 1048 (5th Cir. 1993), is cited by
Sutherland but is inapposite, because Gross involved a prior
sentence on a federal charge, which at the time of Gross’s sentence
fell under § 5G1.2.
To demonstrate ineffective assistance of counsel with
regard to sentencing issues, Sutherland was required to establish
a reasonable probability that but for his counsel’s deficient
performance, his sentence would have been significantly less harsh.
United States v. Seyfert, 67 F.3d 544, 548-49 (5th Cir. 1995). The
report of the magistrate judge, adopted as the district court’s
opinion, carefully refutes all of Sutherland’s contentions either
on the facts or in their consequences for his sentencing decision.
Moreover, there was no constitutionally significant prejudice to
appellant’s sentence from any of the alleged errors.
To the extent Sutherland challenges his guilty plea
because of allegedly ineffective representation of counsel, his
objections are meritless. He was sentenced according to the
Guidelines, and his plea did not become involuntary merely because
he received a sentenced greater than he anticipated. See United
States v. Badger, 925 F.2d 101, 104 (5th Cir. 1991)
(dissatisfaction with a sentence is not grounds for withdrawal of
a guilty plea). To the extent this contention rests on his
assertion that evidence against him should have been suppressed, it
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is also meritless. He signed a consent to search. He signed a
plea agreement stating that his plea was voluntary, and he contends
that he voluntarily disclosed the existence of the machine gun to
federal agents. Further, his warrantless arrest was lawful, based
as it was both on information that Sutherland possessed a machine
gun illegally and that there was an outstanding burglary arrest
warrant (a crime to which he later pleaded guilty in state court).
Although it appears that all of the above points are
those which Sutherland would have raised on direct appeal without
any more success than they are raised here, Sutherland also asserts
that his counsel failed to file an appeal for him. But this claim
was not adequately raised in the district court, where Sutherland
says only two things about his desire for an appeal. He says there
that counsel “advised him” against appealing and that she was not
going to “file motions and file an appeal simply because she did
not want to look stupid in court.” The magistrate judge
interpreted these complaints as unspecified and conclusory
assertions related to the complaint that Sutherland’s attorney
wanted to be and has now become a prosecutor. Sutherland is an
experienced jail house lawyer, but he never asserted in the
district court that he asked his counsel to appeal, and she refused
to do so, depriving him of his opportunity to appeal. For this
reason, we decline to consider his newly-articulated claim for the
first time on appeal. United States v. Colon-Padilla, 770 F.2d
1328, 1334 n.6 (5th Cir. 1985).
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For the foregoing reasons, the judgment of the district
court is AFFIRMED.
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