UNITED STATES of America, Plaintiff-Appellee, v. Carlos GASCA, also known as Chino, Defendant-Appellant, 236 F. App'x 459

ORDER ROBERT H. HENRY, Circuit Judge. Carlos Gasea seeks a certificate of appealability (“COA”) to appeal the district court’s order denying his 28 U.S.C. § 2255 petition to vacate, modify, or set aside his sentence. In his § 2255 petition, Mr. Gas-ea alleged ineffective assistance of counsel in the negotiation of his plea agreement. For substantially the same reasons set forth by the district court, we agree that Mr. Gasea is not entitled to a COA, and we dismiss this appeal. I. BACKGROUND In July 2003, a federal grand jury returned an indictment charging Mr.

Gasea with conspiracy to distribute and possess with intent to distribute methamphetamine (count 1), marijuana (count 2), and cocaine (count 3), in violation of 21 U.S.C. §§ 841(a)(1) and 846. In August 2004, pri- or to the completion of the government’s case at trial, Mr. Gasea agree to plead guilty to count 1 of the indictment. Mr. Gasca’s plea agreement stated: Defendant knowingly and voluntarily waives any right to appeal or collaterally attack any matter in connection with this prosecution, conviction and sentence.

The defendant is aware that Title 18, U.S.C. § 3742 affords a defendant the right to appeal the conviction and sentence imposed. By entering into this agreement, the defendant knowingly waives any right to appeal the conviction or a sentence imposed which is within the guideline range determined appropriate by the court. The defendant also waives any right to challenge a sentence or manner in which it was determined in any collateral attack, including, but not limited to, a motion brought under Title 28, U.S.C. § 2255 [except as limited by United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir.2001) ].

In other words, the defendant waives the right to appeal the sentence imposed in this case except to the extent, if any, the court departs upwards from the applicable sentencing guideline range determined by the court. However, if the United States exercises its right to appeal the sentence imposed as authorized by Title 18, U.S.C. § 3742(b), the defendant is released from this waiver and may appeal the sentence received as authorized by Title 18, U.S.C. § 3742(a). The defendant agrees to waive any rights that may have been conferred under Blakely v.

Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and agrees to have his sentence in this case determined under the U.S. Sentencing Guidelines (Guidelines).

The defendant further waives any right to have facts that determine the offense level under the Guidelines alleged in an indictment and found by a jury beyond a reasonable doubt; agrees that facts that determine the offense level will be found by the Court at sentencing by a preponderance of the evidence and agrees that the court may consider any reliable evidence, including hearsay; and the defendant agrees to waive all constitutional challenges to the validity of the Guidelines. This plea agreement was interpreted into Spanish for the defendant by Marcella Renna in the presence of my attorney Scott Gyllenborg.

Ms. Renna is a federally-certified interpreter of Spanish. Rec. doc. 242, at 2-3 (Government’s Motion Requesting Enforcement of the Plea Agreement) (quoting Plea Agreement, Rec. doc. 150, at HH11,12, and 17). At the change of plea proceeding, the district court informed Mr. Gasea of the maximum penalty for offense to which he had pleaded guilty: life imprisonment followed by a term of supervised release and a fine of $4,000,000. The court also informed Mr. Gasea of the statutory minimum of ten years’ imprisonment. In response to the court’s inquiries, Mr.

Gasea stated that he had talked to his attorney about how the Sentencing Guidelines might apply. The court then explained: I will not be able to determine the guideline sentence for your case until a presentence report has been prepared by the probation officers of the court. And you and the government have had an opportunity to challenge or contest the facts reported to me by the probation office, and also to challenge or contest the recommended application of the sentencing guidelines by the probation office. So that the sentence might be different from any estimate that you have received.

Id. at 6 (quoting Tr. of Aug. 12, 2004 Plea Hr’g at 4-8). The court added that “[u]nder some circumstances, I would have the authority to depart from the guidelines, and I could impose a sentence that is more severe or less severe than the sentence called for by the guidelines.” Id. Mr. Gasea indicated that he understood these aspects of the Guideline sentencing scheme. He told the court that he was satisfied with the services of his counsel. The court sentenced Mr. Gasea to a term of 360 months’ imprisonment. Mr.

Gasea filed a notice of appeal, but this court dismissed the appeal after the government moved to enforce the waiver-of-appeal provision of the plea agreement. Subsequently, Mr. Gasea filed the instant 28 U.S.C. § 2255 motion, alleging that he had received ineffective assistance of counsel in negotiation of the plea agreement. In particular, Mr. Gasea asserted that his counsel: (1) failed to explain the effect of the Sentencing Guidelines, including the possibility of a 360-month sentence; and (2) failed to explain the waiver of appeal provision in the plea agreement. Mr.

Gas-ea further alleged that (3) because he did not speak English and the plea agreement “was translated to him in

summary fashion and not verbatim,” he did not understand that the minimum sentence was ten years and that the Guidelines authorized a sentence of 360 months. Rec. doc. 240, at 2. The government responded by filing a motion to enforce the provision of the plea agreement waiving the right to collaterally attack the conviction and sentence. After Mr. Gasea failed to file a timely response, the district court granted government’s motion and subsequently denied Mr. Gas-ca’s application for a COA. Filing an application for a COA with this court, Mr. Gasea now seeks to appeal the district court’s ruling. II.

DISCUSSION In order to obtain a COA, Mr. Gasea must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Mr. Gasea may make this showing by demonstrating that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Miller-El v.

Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (internal quotation marks omitted). “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that [the] petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Here, for substantially the same reasons set forth by the district court in its October 26, 2006 order, we conclude that Mr. Gasea is not entitled to a COA.

As the district court observed, provisions in plea agreements waiving the right to appeal and collaterally attack a conviction and sentence are enforceable if (

a) the disputed issue falls within the scope of the waiver; (

b) the defendant knowingly and voluntarily waived his rights; and (

c) the waiver will not result in a miscarriage of justice. See United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir.2004) (en banc). However, despite a waiver provision in a plea agreement, a defendant may still overcome a waiver provision if he establishes that he received ineffective assistance in the negotiation of the plea agreement. In assessing an allegation of ineffective assistance of counsel in this context, we must examine “the factual circumstances surrounding the plea to determine whether [but for counsel’s errors], the petitioner would have proceeded to trial.” Miller v.

Champion, 262 F.3d 1066, 1072 (10th Cir.2001). Mr. Gasea argues that the waiver provisions of the plea agreement should not be enforced because his counsel did not explain the potential sentence and the waiver provisions of the plea agreement. However, the transcript of the change-of-plea proceeding indicates that the district court explained both matters and that Mr. Gasea stated that he understood them. Moreover, Mr. Gasca’s counsel has submitted an affidavit stating that “I am satisfied that the entire document [the plea agreement] was read in Spanish to Mr. Gasea in my presence.” Rec. doc. 242 attach. A.

In light of the district court’s explanations, Mr. Gasea has failed to assert a colorable claim of ineffective assistance of counsel that would vitiate the plea agreement. Accordingly, we DENY Mr. Gasca’s application for a COA and DISMISS this appeal.