FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT March 6, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 19-2009 (D.C. Nos. 2:16-CV-00762-WJ-KBM & CIRILO OROZCO-SANCHEZ, 2:15-CR-01557-WJ-1) (D. N.M.) Defendant - Appellant. _________________________________ ORDER AND JUDGMENT* _________________________________ Before TYMKOVICH, Chief Judge, HARTZ and BACHARACH, Circuit Judges. _________________________________ In 2015 Cirilo Orozco-Sanchez accepted a plea agreement and pleaded guilty to one count of illegally reentering the United States after having been deported, in violation of 8 U.S.C. § 1326(a) and (b). He later filed a motion under 28 U.S.C. § 2255 claiming that his attorney was ineffective in counseling him about the plea agreement and in failing to file an appeal. The district court denied relief, but it granted a certificate of appealability (COA) on whether Mr. Orozco’s counsel was * After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. ineffective and whether he suffered prejudice with regard to either the plea agreement or the appeal. We affirm the district court’s denial of relief. BACKGROUND I. Prior Conviction and Underlying Conduct In 2011 Mr. Orozco pleaded guilty to violating § 1326(a) & (b). Having served the imprisonment portion of his sentence, he was released on March 12, 2015, and removed to Mexico. Just two weeks later, however, on March 25, he was apprehended in New Mexico. Mr. Orozco states that drug traffickers had kidnapped him a few days after his return to Mexico and had threatened to kill him if he did not recross the border, when and how they directed, to distract border officers from a drug-smuggling operation. II. Plea Proceedings After charging Mr. Orozco with another violation of § 1326(a) and (b), the government offered him a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C). The proposed agreement did not establish an exact sentencing range, but instead provided for a downward departure or adjustment in offense level that partially depended on Mr. Orozco’s criminal-history category. Mr. Orozco would see a greater benefit from the plea agreement if he were in criminal-history categories I-V, rather than in category VI. The agreement limited the parties’ sentencing arguments, including precluding Mr. Orozco from arguing for any other departure or variance, and it contained an appeal waiver. 2 Mr. Orozco’s counsel, Margaret Strickland, thought Mr. Orozco would be in criminal-history category V. She advised him that his Guidelines range with the agreement would be 30 to 37 months, while without the agreement it would be 63 to ...
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