concurring.
It is undisputed that the denial of Mr. Nagi’s motion to vacate the sentence must be affirmed unless we conclude that the district court erred in finding that the performance of Mr. Nagi’s counsel passed constitutional muster. I see no basis for concluding that the district court erred in this respect.
The district court found as a fact that one of Mr. Nagi’s lawyers — David Koelzer, who was taking the lead in the negotiations over the sentence guideline range — knew that the guidelines being used were those applicable to criminal activity taking place after October 15, 1988. The court’s finding was supported by probative evidence and, in my view, was not clearly erroneous.
The district court also found as a fact that Mr. Nagi had not continued to participate in the criminal enterprise after October 15. At the time of the negotiation of the plea agreement, however, such a finding could hardly have been characterized as a foregone conclusion. The government was in possession of evidence that Mr. Nagi had attempted to communicate with his coconspirators during the month of October, following his arrest on *137September 30, and there was uncontradieted testimony that — in the words of the district court — the Assistant U.S. Attorney who negotiated the plea agreement “believed that even though defendant was in custody as of September 30, 1988 ... defendant continued to conduct activities of the [continuing criminal enterprise] after October 15, 1988, thus making the new guidelines appropriate.”
The Assistant U.S. Attorney’s belief may well have been wrong, as the district court ultimately found it was, but the existence of that belief was a fact of life as far as Mr. Nagi’s lawyer, Mr. Koelzer, was concerned. Mr. Koelzer nonetheless succeeded in persuading the Assistant U.S. Attorney to sign a plea agreement under which Mr. Nagi was to receive a sentence by no means unattractive, from the defense standpoint, under either version of the guidelines.
Against this background, and applying the standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and its progeny, the district court concluded that Mr. Nagi had not been denied effective assistance of counsel. I agree — and I concur both in Judge Siler’s opinion and in the judgment of affirmance.