United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-2387
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Juan Correa-Gutierrez, *
also known as *
Armando Valencia Andrade, *
* Appeal from the United States
Appellant, * District Court for the
* District of Nebraska.
v. *
* [UNPUBLISHED]
United States of America, *
*
Appellee. *
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Submitted: January 19, 2012
Filed: January 25, 2012
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Before LOKEN, BOWMAN, and BENTON, Circuit Judges.
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PER CURIAM.
Juan Correa-Gutierrez appeals from an order of the District Court1 denying his
28 U.S.C. § 2255 motion to vacate, set aside, or correct the sentence imposed
following his guilty plea to a drug offense. Correa-Gutierrez, who has been residing
in this country illegally, argues that Padilla v. Kentucky, 130 S. Ct. 1473 (2010),
applies retroactively and that, consistent with Padilla, he established that his counsel
1
The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.
in his underlying criminal case provided ineffective assistance by failing to advise
him that his guilty plea might result in deportation and by failing to object to the
criminal history calculations in his presentence report (PSR). Following careful
review, we find it unnecessary to decide whether Padilla applies, and we conclude
that the District Court properly denied Correa-Gutierrez relief under § 2255.
The record conclusively establishes that Correa-Gutierrez did not meet his
burden to show ineffective assistance of his trial counsel or resulting prejudice: the
PSR indicated a likelihood that Correa-Gutierrez would be deported if convicted;
Correa-Gutierrez confirmed that he had read the PSR, discussed it with his counsel,
and understood it; and Correa-Gutierrez never moved to withdraw his guilty plea.
See Deltoro-Aguilera v. United States, 625 F.3d 434, 436 (8th Cir. 2010) (noting that
when a district court denies a § 2255 motion without a hearing, an appellate court
affirms only if de novo review reveals that the motion and the files and records of the
case conclusively show that the movant is entitled to no relief); Strickland v.
Washington, 466 U.S. 668, 687 (1984) (holding that a convicted defendant can
establish ineffective assistance requiring reversal if he shows that counsel’s
performance was deficient and that the deficient performance prejudiced his defense).
For similar reasons, counsel was not ineffective for failing to inform Correa-Gutierrez
that his status as a “deportable alien” made him ineligible for a drug-treatment
program. Cf. United States v. Young, 927 F.2d 1060, 1062 (8th Cir.) (holding in
direct appeal that a defendant’s decision to plead guilty cannot be affected by a
court’s failure to tell him what he already knows), cert. denied, 512 U.S. 943 (1991).
Additionally, the record conclusively establishes that the PSR’s criminal history
calculations were not incorrect. See U.S.S.G. §§ 4A1.1(a) (calculating criminal
history score requires adding three “points for each prior sentence exceeding one year
and one month”); 4A1.2(a) (defining the term “prior sentence” to mean “any sentence
previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea
of nolo contendere, for conduct not part of the instant offense”); Rodriguez v. United
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States, 17 F.3d 225, 226 (8th Cir. 1994) (holding that counsel’s failure to advance
meritless argument cannot constitute ineffective assistance).
Accordingly, we affirm the judgment of the District Court, and we grant
counsel’s motion for leave to withdraw.
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