United States v. Silva

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS July 14, 2005

TENTH CIRCUIT PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 04-2312
(D.C. Nos. CIV-04-998-LH/LFG and
v.
CR-02-1167-LH)
(New Mexico)
JOSEPH ERIC SILVA,

Defendant-Appellant.

ORDER

Before SEYMOUR, HARTZ and McCONNELL, Circuit Judges..

Joseph Eric Silva applies pro se 1 for a certificate of appealability (COA) of

the district court’s denial of his motion to vacate, set aside, or correct his sentence

under 28 U.S.C. § 2255. Mr. Silva also seeks to proceed in forma pauperis (ifp) in

this appeal. 2 Exercising jurisdiction under 28 U.S.C. § 2253(c)(1), we deny a

COA and dismiss the appeal. We also conclude Mr. Silva is not entitled to

proceed ifp.

We liberally construe Mr. Silva’s pro se application. See Hall v. Scott,
1

292 F.3d 1264, 1266 (10th Cir. 2002).
2
The district court denied Mr. Silva’s application for a certificate of
appealability, as well as his motion for leave to proceed in forma pauperis on
appeal.
 Mr. Silva pled guilty to possession with intent to distribute fifty kilograms

or more of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 18

U.S.C. §2. Based on a prior felony conviction for attempted jail escape and a

felony conviction for importing heroin, his presentence report (PSR) characterized

him as a career offender under U.S.S.G. § 4B1.1. The PSR calculated his offense

level as thirty-two and his criminal history category as VI. Over Mr. Silva’s

objection, the district court adopted the PSR and sentenced him within the

applicable guidelines range to 220 months imprisonment followed by three years

of supervised release. In his plea agreement, he waived his right to appeal except

on the issue of his classification as a career offender. He directly appealed on this

issue, and we affirmed. See United States v. Silva, 94 Fed. Appx. 747 (10th Cir.

Apr. 6, 2004).

Mr. Silva sought relief under § 2255 claiming 1) his indictment was

defective and thus his plea was involuntary; 2) he was denied the right to a jury

trial because of a sentence enhancement based on prior convictions; 3) the

government violated its plea agreement; and 4) his counsel provided him

ineffective assistance. The district court dismissed Mr. Silva’s petition.

Mr. Silva claimed that because he was arrested at an International Port of

Entry, the charge against him should have been for importation under 21 U.S.C. §

952 and, as a result, his indictment under 21 U.S.C. § 841(a)(1) was defective and

his plea involuntary. The district court determined that § 841(a)(1) permits arrests

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at ports of entry. Rec., doc. 3 at 2 (citing United States v. Hanif, 1 F.3d 998, 1003

(10th Cir. 1993)). It further noted that even if both § 952 and § 841(a)(1) applied

to a defendant’s conduct, the government could rightly prosecute under either. Id.

at 3 (citing United States v. Gomez-Tostado, 597 F.2d 170, 174 (9th Cir. 1979)).

Thus, Mr. Silva’s indictment was not defective and his plea was not involuntary on

this basis.

The district court also concluded Mr. Silva’s sentence enhancement for

career offender did not violate the Sixth Amendment because it was permissibly

based on prior convictions and it fell below the statutory maximum sentence for

his crime. Id. (citing Apprendi v. New Jersey, 530 U.S. 466 (2000)). Moreover, it

observed that Blakely v. Washington, 124 S. Ct. 2531 (2004), does not apply on

collateral review. Id. at 4 (citing Leonard v. United States, 383 F.3d 1146, 1148

(10th Cir. 2004)). 3

The court next rejected Mr. Silva’s argument that the government violated

the plea agreement by seeking a sentence increase based on his prior record

without filing a supplemental information pursuant to 21 U.S.C. § 851(a)(1).

Observing that such a filing is only necessary when a defendant’s statutory

The court noted Mr. Silva’s allegation that his prior convictions were
3

incorrectly weighed in determining his sentence had already been considered on
direct appeal by this court and denied, see United States v. Silva, 94 Fed. Appx.
747 (10th Cir. Apr. 6, 2004), and thus the contention was barred by res judicata.
Rec., doc. 3 at 3 n.1 (citing Kaufman v. United States, 394 U.S. 217, 227 n.8
(1969), and Reed v. Farley, 512 U.S. 339, 358 (1994) (Scalia, J., concurring)).

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maximum or minimum sentence is enhanced, United States v. Allen, 24 F.3d 1180,

1184 (10th Cir. 1994), the court concluded that this requirement did not apply to

Mr. Silva since his sentence was within the statutory limits. Finally, the court

determined that Mr. Silva’s claim of ineffective counsel could not succeed because

he had failed to make a showing of prejudice as required by the second prong of

the Strickland standard. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

Although the district court addressed Mr. Silva’s ineffective assistance of

counsel claim based on the alleged mishandling of the three substantive claims as

described above, it did not mention Mr. Silva’s assertion that his trial counsel was

ineffective for failing to check into his criminal history so that he would

appreciate the harsh sentence he faced under the guidelines. Specifically, Mr.

Silva contends counsel assured him the government would not raise his criminal

history at sentencing and, as a direct result of that misrepresentation, Mr. Silva

signed the plea agreement. According to Mr. Silva, his plea was not knowing and

voluntary because it was the product of an erroneous and coercive sentencing

misrepresentation. We are not persuaded.

In the guilty plea context, to establish a claim for ineffective assistance of

counsel, a defendant must show that counsel’s performance fell below an objective

standard of reasonableness and that, but for counsel’s error, the defendant would

have insisted upon going to trial. See Hill v. Lockhart, 474 U.S. 52, 58-59 (1985).

A plea may be involuntary where an attorney materially misrepresents the

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consequences of the plea; however, standing alone, an attorney’s erroneous

sentence estimate does not render a plea involuntary. See Laycock v. New Mexico,

880 F.2d 1184, 1186 (10th Cir. 1989); see also Lasiter v. Thomas, 89 F.3d 699,

702-03 (10th Cir. 1996); United States v. Gordon, 4 F.3d 1567, 1570-71 (10th Cir.

1993); United States v. Rhodes, 913 F.2d 839, 842-44 (10th Cir. 1990).

Here, as Mr. Silva’s plea agreement specifically explains, new information

later appearing in the presentence report concerning criminal history does not

render the plea unknowing and involuntary. Counsel’s erroneous prediction that

Mr. Silva’s criminal history would not be used by the government to calculate his

guideline range similarly does not support Mr. Silva’s claim. In relevant part, the

Plea Agreement provided:

The defendant has reviewed the application of the guidelines with his
attorney but understands that no one can predict with certainty what
guideline range will be applicable in this case until after a presentence
investigation has been completed and the Court has ruled on the
results of that investigation. The defendant will not be allowed to
withdraw the plea if the applicable guideline range is higher than
expected or if the Court departs from the applicable guideline range.
The defendant fully understands that determination of the sentencing
range or guideline level, as well as the actual sentence imposed, is
solely in the discretion of the Court.

Plea Agreement at 2. The district court was not required to inform Mr. Silva of

the applicable sentencing guideline range prior to accepting his plea of guilty.

Rhodes, 913 F.2d at 843. “Rule 11 requires only that the defendant be informed of

‘the mandatory minimum penalty provided by law . . . and the maximum possible

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penalty provided by law.’” Id. (quoting United States v. Fernandez, 877 F.2d

1138, 1142-43 (2d Cir. 1989) (further quotation omitted)). Even assuming that

Mr. Silva’s attorney failed to apprise him of the sentencing consequences of his

extensive criminal history and, as a result, that Mr. Silva was incorrectly advised

he was facing a much shorter sentence than he received, “[t]he fact that the

applicable Sentencing Guideline range was higher than defense counsel estimated

. . . does not demonstrate a violation of Federal Rule of Criminal Procedure 11.”

Id. (quoting United States v. Turner, 881 F.2d 684, 686 (9th Cir. 1989)). In his

plea agreement (and at his plea colloquy), Mr. Silva expressly indicated he was

fully aware that the prosecution had declined to agree that a specific sentence was

the appropriate disposition in his case, and that he faced a maximum term of

twenty years imprisonment at sentencing. Plea Agreement at 2-3. These

admissions alone belie Mr. Silva’s claim that he was prejudiced by counsel’s

failure to accurately predict the impact of his criminal history. Consequently, we

cannot conclude Mr. Silva’s plea of guilty was involuntary and unknowing.

Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 332,

335-36 (2003). A COA can issue only “if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A

petitioner satisfies this standard by demonstrating that jurists of reason could

disagree with the district court’s resolution of his constitutional claims or that

jurists could conclude the issues presented are adequate to deserve encouragement

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to proceed further.” Miller-El, 537 U.S. at 327. “The COA determination under §

2253(c) requires an overview of the claims in the habeas petition and a general

assessment of their merits.” Id. at 336. “This threshold inquiry does not require

full consideration of the factual or legal bases adduced in support of the claims.

In fact, the statute forbids it.” Id. While Mr. Silva, in applying for a COA, is not

required to prove the merits of his case, he must demonstrate “something more

than the absence of frivolity or the existence of mere good faith” on his part. Id.

at 338 (internal quotations and citation omitted). In addition, because Mr. Silva

seeks to proceed ifp in this appeal, he must demonstrate that he is financially

unable to pay the requisite fees, and that there exists “a reasoned, nonfrivolous

argument on the law and facts in support of the issues raised on appeal.” McIntosh

v. United States Parole Comm’n, 115 F.3d 809, 812-13 (10th Cir. 1997) (internal

quotation omitted).

With these principles in mind, we have carefully reviewed the record of

these proceedings and the order of the district court. We conclude that reasonable

jurists would not debate the resolution of the constitutional claims presented. For

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substantially the reasons set forth by the district court, we DENY Mr. Silva’s

request for a certificate of appealability and his motion to proceed ifp, and

DISMISS his appeal.

SUBMITTED FOR THE COURT

Stephanie K. Seymour
Circuit Judge

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