IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-51220
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN MANUAL SERNA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-96-CR-153-ALL
USDC No. SA-98-CV-149
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August 25, 1999
Before KING, Chief Judge, and DAVIS and SMITH, Circuit Judges.
PER CURIAM:*
Juan Manuel Serna, prisoner number 73146-080, appearing pro
se, appeals the district court’s denial of his motion to vacate
sentence. Finding no error, we affirm.
Serna pleaded guilty to two counts of distributing
methamphetamine. As part of his guilty plea, he specifically
waived his right to appeal his sentence based on any grounds
other than upward departure, ineffective assistance of counsel,
or prosecutorial misconduct. In both the written plea agreement
*
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that this opinion should not be published and is not precedent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.
No. 98-51220
-2-
and at the guilty-plea hearing, Serna stated that he understood
that his sentence had not yet been determined, but that he
nevertheless desired to waive his right to appeal. The district
court specifically informed Serna, inter alia, of the potential
minimum sentence, potential fines, and the effect of supervised
release. Serna now contends that the assistance of his counsel
was ineffective because his counsel failed to challenge the
voluntariness of the appeal waiver. He further contends that the
district court erred in denying him relief under the “safety
valve” provision of U.S.S.G. § 5C1.2.
A determination of an ineffective assistance claim is a
mixed question of law and fact and is reviewed de novo. United
States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996). The
essence of Serna’s appeal is that his counsel should have
challenged the waiver based on United States v. Raynor, 989 F.
Supp. 43 (D.D.C. 1997), which held that a waiver of the right to
appeal a sentence can never be knowing and voluntary if the
sentence has yet to be determined. However, Raynor directly
conflicts with United States v. Melancon, 972 F.2d 566 (5th Cir.
1992), in which a panel of this court rejected the same argument
raised here and held that the uncertainty of a sentence does not
render a waiver of the right to appeal a sentence uninformed.
Id. at 567-68. Our court has since reaffirmed the principle
enunciated in Melancon. See, e.g., United States v. Dees, 125
F.3d 261, 262 (5th Cir. 1997) (defendant was informed of maximum
possible sentence, actual sentence fell within that range, and
therefore, defendant’s plea was informed and voluntary).
No. 98-51220
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As Serna’s argument that his waiver was invalid is without
merit, it follows that his counsel’s failure to challenge the
waiver could not have affected the outcome of the case and,
therefore, does not constitute ineffective assistance. See
United States v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999) (where
argument is without merit, counsel’s failure to raise it does not
result in prejudice to the defendant). Serna’s protestations
that counsel’s erroneous advice led to the waiver are unavailing
as Serna fails to demonstrate how the advice was erroneous.
We decline to address Serna’s argument that the district
court erred in its application of the safety valve provision as
any such alleged error may not be raised by way of a § 2255
motion. See United States v. Vaughn, 955 F.2d 367, 368 (5th Cir.
1992) (nonconstitutional claims, such as application of
sentencing guidelines, may not be raised for first time on
collateral review). Moreover, the issue is outside the ambit of
the COA, and Serna has not explicitly requested that we grant a
COA on that question. See United States v. Kimler, 150 F.3d 429,
431, n.1 (5th Cir. 1998) (defendant must explicitly request a COA
on issues which district court refused to certify for appeal).
For the foregoing reasons, we AFFIRM the judgment of the
district court.
AFFIRMED.