F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 5 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-3103
(D.C. No. 00-CV-3068-RDR)
ISAIAS SOLIS, (D. Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before EBEL , KELLY , 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.
Isaias Solis was indicted on seven drug-related counts, and he pleaded
guilty to one count of possession with intent to distribute cocaine base in
*
This order and judgment is not binding precedent, except under the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.
exchange for the government’s dismissing the remaining six counts. In his plea
agreement, he agreed to “waive[] any right to appeal or collaterally attack any
matter in connection with this prosecution and sentence.” R. Suppl. Vol. 1, Plea
Agreement at 2. He was sentenced, inter alia, to 135 months’ imprisonment. This
court dismissed his direct appeal on the basis that “the record indicates, and Solis
concedes, that he knowingly and voluntarily . . . waived his statutory right to
appeal his sentence.” United States v. Solis , No. 98-3345, 1999 WL 492668,
at *1 (10th Cir. July 13, 1999) (unpublished). In March 2000, Solis filed this
motion pursuant to 28 U.S.C. § 2255 challenging his sentence on the basis that his
counsel was constitutionally ineffective for failing to explain the consequences of
his waiver and in his performance at sentencing. The district court denied the
motion on the grounds that Solis knowingly and voluntarily waived the right to
collaterally attack his sentence and that, in any event, Solis could not establish
that his counsel provided ineffective assistance. Solis timely filed a notice of
appeal.
In his application for a certificate of appealability pursuant to 28 U.S.C.
§ 2253(c), Solis raised six issues: (1) whether counsel was ineffective in failing
to advise him of the consequences of the waiver provision in his plea agreement
and the waiver provision therefore should not be enforced; (2) whether counsel
was ineffective at sentencing for failing to challenge a prior conviction used to
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increase his criminal history; (3) whether counsel was ineffective for failing to
move for a downward departure because his prior convictions over-represented
his criminal history; (4) whether counsel was ineffective for failing to move for
a downward departure because the government engaged in sentencing entrapment;
(5) whether counsel was ineffective for failing to object to the double-counting of
criminal history points; and (6) whether the district court erred in failing to
conduct an evidentiary hearing. This court previously granted a certificate of
appealability on the first and third issues.
Solis is essentially claiming two layers of constitutionally ineffective
assistance of counsel. To succeed on a claim of ineffective assistance of counsel,
Solis must demonstrate that his counsel’s performance was deficient, and that
there is a reasonable probability that his counsel’s performance prejudiced him.
Walker v. Gibson , 228 F.3d 1217, 1231 (10th Cir. 2000). The first layer of
alleged ineffective assistance challenges his counsel’s performance in negotiating
his plea agreement, in particular, counsel’s failure to advise him of the
consequences of the waiver provision in the plea agreement. The claimed
prejudice from this allegedly deficient performance is the waiver of his second
layer of ineffective counsel claims--those occurring at sentencing. The waiver in
the plea agreement does not bar his claim of ineffective assistance in negotiating
the plea. United States v. Cockerham , No. 98-7189, slip op. at 20, 2001 WL
-3-
43016, at *7 (10th Cir. Jan. 18, 2001). However, for this claim to succeed, he
must show prejudice, which in this situation, requires that he show prejudice from
his counsel’s performance at sentencing.
We need not address whether counsel’s performance, either during plea
negotiations or at sentencing, was deficient if Solis cannot demonstrate prejudice,
Walker , 228 F.3d at 1231, and we conclude he cannot. The district court
determined that none of the actions Solis contends his counsel should have
undertaken at sentencing would have been successful in reducing his sentence.
On consideration of the record and Solis’ arguments on appeal, we agree with the
court’s analysis. Therefore, for substantially the same reasons as stated by the
district court in its analysis of Solis’ claims on the merits, we conclude he has not
shown that his counsel was ineffective.
We DENY Solis’ application for a certificate of appealability on issues
two, four, five and six, and AFFIRM the judgment of the district court. The
mandate shall issue forthwith.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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