FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 24, 2016
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-3151
(D.C. Nos. 2:14-CV-02536-WPJ and
STEVEN CARMICHAEL WARREN, 2:11-CR-20040-WPJ-1)
(D. Kan.)
Defendant - Appellant.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
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Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
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Steven Carmichael Warren, a federal prisoner appearing pro se, seeks a certificate
of appealability (“COA”) to challenge the district court’s denial of his 28 U.S.C. § 2255
motion to vacate, set aside, or correct his sentence. See 28 U.S.C. § 2253(c)(1)(B)
(requiring a COA to appeal an order denying a § 2255 motion). Exercising jurisdiction
under 28 U.S.C. § 1291, we deny a COA and dismiss this matter.
* This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I. BACKGROUND
A grand jury returned an indictment charging Mr. Warren with (1) carrying a
firearm during and in relation to and in furtherance of a crime of violence in violation of
18 U.S.C. § 924(c); (2) armed robbery in violation of 18 U.S.C. § 2113(a), (d); and (3)
being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2),
and 924(e). ROA, Vol. I at 8-9; see also United States v. Warren, 737 F.3d 1278, 1281
(10th Cir. 2013).
Mr. Warren pled guilty to the armed-robbery count, and the Government
dismissed the others. The plea agreement stated:
3. Application of the Sentencing Guidelines. The parties are not
requesting imposition of an advisory guideline sentence. There is no
agreement between the parties as to the sentence to be imposed. The
defendant is free to ask the Court to impose whatever sentence he wants.
Likewise, the government is free to ask the Court to impose whatever
sentence it deems appropriate. The parties understand this agreement binds
the parties only and does not bind the Court.
ROA, Vol. I at 21. The agreement also stated the Government would recommend a
three-level reduction for acceptance of responsibility. Id. at 21-22. The Government did
so at the sentencing hearing.
The presentence report listed Mr. Warren’s previous convictions, “including an
earlier federal felony conviction for armed bank robbery, a felony conviction for the sale
of a PCP-laced cigarette, a felony conviction for child abuse, and over a dozen
misdemeanor convictions—the majority of which involved violent conduct.” Warren,
737 F.3d at 1281. Based on Mr. Warren’s prior convictions, the district court determined
he qualified as a career criminal. The total offense level of 31 and a criminal history
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category of VI resulted in a United States Sentencing Guidelines range of 188 to 235
months. The Government sought an upward variance to 300 months in prison. Mr.
Warren’s counsel argued that the district court’s career-criminal ruling “already [took]
into account all of [Mr. Warren’s] criminal conduct” and that the court should not use the
convictions as a basis for the upward variance. ROA, Vol. I at 118, 126-27. The district
court granted the Government’s upward variance based on a number of factors, including
Mr. Warren’s prior convictions.
Mr. Warren challenged his sentence on direct appeal; this court affirmed. Warren,
737 F.3d at 1280.
He then brought a 28 U.S.C. § 2255 motion, arguing his plea counsel rendered
ineffective assistance by failing to (1) object to the purported untimeliness of the
Government’s request for an upward variance, (2) request an evidentiary hearing at
sentencing, (3) object to the district court’s consideration of prior convictions as a basis
for the upward variance (i.e., double counting his criminal conduct), (4) object to the
adequacy of the district court’s explanation for the variance, and (5) assert the
Government breached the plea agreement. He also argued his appellate counsel was
ineffective for failing to raise these arguments on direct appeal.
The district court rejected each argument in a thorough and well-reasoned order.
Mr. Warren now seeks a COA on the third and fifth issues, arguing his plea counsel was
ineffective.
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II. DISCUSSION
A. Legal Background
Mr. Warren may not appeal the district court’s denial of his § 2255 motion without
a COA. 28 U.S.C. § 2253(c)(1)(B). To obtain a COA, he must make “a substantial
showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and show “that
reasonable jurists could debate whether . . . the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve encouragement to
proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted).
Mr. Warren seeks a COA on two issues involving ineffective assistance of
counsel. The Supreme Court has held that the Sixth Amendment right to counsel
includes a right to effective representation. Strickland v. Washington, 466 U.S. 668, 686
(1984). We first consider whether “counsel’s performance was deficient.” Id. at 687.
Mr. Warren must show that his attorney’s “representation fell below an objective
standard of reasonableness.” Id. at 688. We then consider prejudice by asking “whether
counsel’s constitutionally ineffective performance affected the outcome of the plea
process.” Hill v. Lockhart, 474 U.S. 52, 59 (1985) (applying the Strickland standard in
the plea context). “[T]o satisfy the ‘prejudice’ requirement, the defendant must show that
there is a reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.” Id.
B. Analysis
Mr. Warren first argues his counsel was ineffective for failing to object when the
district court relied on his prior convictions as a basis for both the career-criminal
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classification and the upward variance. The district court rejected this argument because
Mr. Warren’s counsel raised the issue at the sentencing hearing and urged the court not to
consider the prior convictions in ruling on the variance. The district court concluded that
“counsel’s argument on double counting was well within the wide range of reasonable
professional assistance.” ROA, Vol. I at 187. For substantially the same reasons given in
the district court’s order, we conclude that no reasonable jurist could debate the
correctness of the court’s ruling on this issue.
Next, Mr. Warren contends his counsel was ineffective for failing to argue the
Government breached the plea agreement insofar as it required the Government to move
for a three-level reduction for acceptance of responsibility. In denying the § 2255
motion, the district court concluded there was no breach because the Government
fulfilled its obligation under the plea agreement to recommend the reduction. The court
further noted the plea agreement “explicitly permitted both parties to ask for a non-
guideline sentence including any sentence that they deemed appropriate.” Id. at 190. For
substantially the same reasons stated by the district court, we conclude the district court’s
rejection of Mr. Warren’s argument is beyond debate.
III. CONCLUSION
We deny Mr. Warren’s application for a COA and dismiss this matter.
ENTERED FOR THE COURT,
Scott M. Matheson, Jr.
Circuit Judge
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