F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 10 2000
TENTH CIRCUIT
__________________________ PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Defendant-Appellee,
v. No. 99-2168
(D. N.M.)
ORLANDO GELL-IREN, (D.Ct. No. CIV-99-83-LH/LCS)
Plaintiff-Appellant.
____________________________
ORDER AND JUDGMENT *
Before BRORBY, EBEL, and LUCERO, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Appellant Orlando Gell-Iren appeals the district court’s decision denying
*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
his 28 U.S.C. § 2255 motion. Because the district court granted a certificate of
appealability, we exercise jurisdiction under 28 U.S.C. § 2253(a) and affirm. 1
The underlying facts concerning Mr. Gell-Iren’s conviction are outlined in
United States v. Gell-Iren, 146 F.3d 827, 829-30 (10th Cir. 1998). In short, the
government, after investigating Mr. Gell-Iren as a possible drug supplier, hired a
confidential informant who arranged a drug buy between a Federal Bureau of
Investigation agent and Mr. Gell-Iren. Id. at 829. During the transaction, Mr.
Gell-Iren handed the agent a bag containing ten ounces of heroin. Id. Law
enforcement officers then arrested Mr. Gell-Iren and subsequently found
additional small amounts of heroin in his van. Id. Following his arrest, Mr. Gell-
Iren made incriminating statements that he purchased the heroin, kept it overnight
in his van, and delivered the heroin to the buyer. Id. at 829-30. Nevertheless,
Mr. Gell-Iren pled “not guilty” and sought to suppress these statements,
contending he told agents he only understood his Miranda rights “a little bit” and
believed his statement would not be used against him. Id. at 830. Based on
credible evidence from agents who testified they fully informed him of his rights,
1
See Kanikaynar v. Sisneros, 190 F.3d 1115, 1117 (10th Cir. 1999), petition for
cert. filed (U.S. Nov. 5, 1999) (No. 99-6896). In addition, we grant the government’s
motion to supplement record.
-2-
the trial court found Mr. Gell-Iren’s testimony incredible, determined he
voluntarily waived his rights, and allowed admission of his confession into
evidence. Id.
At trial, Mr. Gell-Iren testified he never knew the substance in the package
contained heroin. Id. at 829. Rejecting this testimony, a jury convicted Mr. Gell-
Iren of possessing heroin with intent to distribute. Id. at 830. At his sentencing
hearing, Mr. Gell-Iren continued to assert his innocence, stating “Your Honor,
what I have to say, I have already said it at the trial. I told all the truth.” The
trial court sentenced Mr. Gell-Iren to 94 months imprisonment. Id.
Mr. Gell-Iren filed a direct appeal: (1) claiming the trial court improperly
admitted his post-arrest statement into evidence; (2) accusing the government of
outrageous conduct in using an informant; and (3) claiming ineffective assistance
of counsel for failure to raise either the issue of outrageous conduct or
entrapment. Id. at 829. We affirmed Mr. Gell-Iren’s conviction and sentence as
to the first two issues, and declined to address the issue of ineffective assistance
of counsel on appeal, dismissing it without prejudice. Id. at 831-32.
Thereafter, Mr. Gell-Iren filed his § 2255 motion raising his claim of
-3-
ineffective assistance of counsel. Specifically, Mr. Gell-Iren claimed his trial
counsel acted ineffectively by allowing him to proceed to trial rather than plead
“guilty.” He suggested if he had pled “guilty,” he would have qualified for a
sentence reduction under the United States Sentencing Guidelines, including a
two-level “safety value” reduction under U.S.S.G. § 5C1.2 and a three-level
reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. In addition,
even though his trial counsel pursued the defenses of entrapment and outrageous
conduct at trial, Mr. Gell-Iren argued his trial counsel acted ineffectively in
failing to raise these defenses prior to trial, and in not asking for jury instructions
on those defenses.
A federal magistrate judge issued proposed findings and a recommendation
Mr. Gell-Iren’s § 2255 motion be dismissed, finding his trial counsel did not act
ineffectively in light of Mr. Gell-Iren’s continued assertion of innocence. In
finding Mr. Gell-Iren continued to assert his innocence, the magistrate judge
relied on Mr. Gell-Iren’s counsel’s attempt to suppress his confession as proof
that Mr. Gell-Iren maintained his “innocence” before trial. In addition, the
magistrate judge reasoned if his counsel had known his client’s assertion of
innocence at trial would be false, he would have had an ethical obligation either
to prevent him from testifying or to withdraw from representation. As a result of
-4-
Mr. Gell-Iren’s continued assertion of innocence, the magistrate judge determined
it would not be “objectively unreasonable” for his counsel to forego explaining
“what would happen if [he] were to accept full responsibility for the crime.” 2 As
to the outrageous conduct and entrapment claim, the magistrate judge determined
a reasonable probability existed that any attempt by his counsel to raise these
issues would have been unsuccessful in light of Mr. Gell-Iren’s unsuccessful
appeal of the same issues. 3
The district court adopted the magistrate judge’s proposed findings and
recommendations and dismissed Mr. Gell-Iren’s § 2255 motion. Thereafter, the
district court granted Mr. Gell-Iren’s request for a certificate of appealability,
2
In this case, the district court did not hold a hearing to determine whether
counsel failed to explain to Mr. Gell-Iren the consequences of his continuing to plead
guilty after the suppression hearing.
3
The magistrate judge also addressed Mr. Gell-Iren’s claim that if he pled
“guilty,” he would have been eligible for a reduction in his sentence for “acceptance of
responsibility” under U.S.S.G. § 3E1.1. The magistrate judge determined Mr. Gell-Iren’s
counsel’s performance did not prejudice Mr. Gell-Iren because his continued assertion of
innocence minimized any chance of receiving a sentence reduction for acceptance of
responsibility. Although the magistrate judge did not directly address Mr. Gell-Iren’s
“safety value” argument under U.S.S.G. § 5C1.2, the magistrate judge found he supplied
incredible and perjured testimony at his suppression hearing. Sentencing Guideline
§ 5C1.2(5) requires a defendant must have “truthfully provided to the Government all
information and evidence” he possessed concerning the offense in order to qualify for a
two-level sentence reduction.
-5-
framing the issue on appeal as:
[W]hether it is ineffective assistance of counsel when it is asserted
that an attorney did not explain the option of pleading guilty and
accepting responsibility for one’s crime, to a defendant when there is
neither allegation nor any indication in the record that the defendant
did anything accept [sic] assert his innocence to his attorney.
On appeal, Mr. Gell-Iren frames the issue somewhat differently, focusing
the timing of this issue to his counsel’s advice after the suppression hearing and
stating “[a]t that point in time counsel had an obligation to tell [him] and should
have advised him that the penalties, should he lose, were onerous.”
“[W]e review the district court’s legal rulings on a § 2255 motion de novo
and its findings of fact for clear error.” United States v. Pearce, 146 F.3d 771,
774 (10th Cir. 1998) (citing United States v. Cox, 83 F.3d 336, 338 (10th Cir.
1996)). Whether Mr. Gell-Iren received effective assistance of counsel is a mixed
question of law and fact we review de novo. United States v. Prows, 118 F.3d
686, 691 (10th Cir. 1997). “To prevail on a claim of ineffective assistance of
counsel, [Mr. Gell-Iren] ‘must show that counsel’s representation fell below an
objective standard of reasonableness’” and the deficient performance prejudiced
him. Id. (quoting Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). If Mr.
Gell-Iren fails to establish the second-prong of “prejudice,” the claim of
ineffective assistance of counsel fails even if the first prong is established.
-6-
Strickland, 466 U.S. at 691-92. To show prejudice in the context of his sentence,
Mr. Gell-Iren must show a reasonable probability that, but for counsel’s alleged
error, the outcome of his sentence would have been different. Cf. United States v.
Boone, 62 F.3d 323, 327 (10th Cir.), cert. denied, 516 U.S. 1014 (1995) (relying
on Strickland, 466 U.S. at 694).
Because Mr. Gell-Iren’s appeal limits the issue framed by the district court
to only events occurring after the unsuccessful attempt to suppress his confession,
we will not inquire into the reasons for Mr. Gell-Iren initially pleading “not
guilty” nor the adequacy of his counsel’s advice on how to plead up to that
juncture. Nevertheless, we recognize the initial decision on whether to plead
guilty is a complicated one which often must be made before the evidence is in
and the weight of the state’s case fully assessed. See McMann v. Richardson, 397
U.S. 759, 768-69 (1970) (describing, as a sensible choice, a defendant plea of
“not guilty” when he and his counsel believe his confession is inadmissible).
We proceed to Mr. Gell-Iren’s claim of ineffective assistance of counsel
after the suppression hearing. We elect to by-pass a determination as to whether
his counsel acted ineffectively, instead proceeding to the prejudice prong under
-7-
Strickland. 4 Even if his attorney performed ineffectively in not advising Mr.
Gell-Iren of the ramifications of the trial court’s admission of his confession into
evidence, Mr. Gell-Iren fails to show how his attorney’s performance caused him
prejudice. Specifically, he does not allege nor show a willingness by the
prosecution to enter plea negotiations recommending a sentence reduction, that
such a plea would have been acceptable to the court, or that he would have been
eligible for the sentence reduction provisions at issue. See Boone, 62 F.3d at 327.
Rather, Mr. Gell-Iren’s continued claim of innocence at the trial and sentencing
hearing evidence his clear reluctance to accept responsibility, weighing against a
reduction under U.S.S.G. § 3E1.1. Moreover, Mr. Gell-Iren’s continued assertion
of innocence despite credible and inculpatory evidence to the contrary, together
with his failure to tell the truth at his suppression hearing, weigh against
eligibility under U.S.S.G. § 5C1.2, which requires a defendant to have “truthfully
provided to the Government all information and evidence” he possessed
concerning the offense. See U.S.S.G. § 5C1.2(5). In sum, Mr. Gell-Iren has not
shown a reasonable probability of a sentence reduction if he changed his plea to
4
We may affirm a decision on grounds not relied on by the district court if
supported by the record. See United States v. Sandoval, 29 F.3d 537, 542 n.6 (10th Cir.
1994). In this case, the magistrate judge premised the recommendation of dismissal of
Mr. Gell-Iren’s § 2255 motion primarily on the first prong of Strickland, although the
magistrate judge did address prejudice to Mr. Gell-Iren, but in a more limited discussion.
-8-
guilty after the suppression hearing.
For these reasons, we AFFIRM the district court’s decision.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
-9-