FILED United States Court of Appeals Tenth Circuit

UNITED STATES COURT OF APPEALS March 8, 2019 Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 18-6188 (D.C. Nos. 5:17-CV-01161-C and IVAN BENNETT WILLIS, 5:13-CR-00267-C-1) (W.D. Okla.) Defendant-Appellant.

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before CARSON, BALDOCK, and MURPHY, Circuit Judges.

Following trial, a jury found Defendant Ivan Willis guilty of aggravated sexual

abuse in Indian Country in violation of 18 U.S.C. § 2241(a). The district court

sentenced Defendant to 151 months in prison, the low end of his guideline range.

We affirmed Defendant’s conviction on direct appeal. United States v. Willis, 826 F.3d 1265 (10th Cir. 2016). Defendant subsequently moved pursuant to 28 U.S.C.

§ 2255 to set aside his sentence based on ineffective assistance of trial counsel. The

district court denied Defendant relief, as well as his subsequent motion pursuant to

28 U.S.C. § 2253 for a Certificate of Appealability. Now before us is Defendant’s

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. renewed motion for a COA.

In his motion, Defendant claims his counsel did not properly advise him of the

sentencing range that would apply if he had accepted the Government’s plea offer.

Defendant asserts that during plea negotiations the Government offered him a plea

agreement under which he would plead guilty to abusive sexual contact in violation

of 18 U.S.C. § 2244(a)(1) and face ten years in prison, as opposed to fifteen years

if convicted after trial of aggravated sexual abuse under § 2241(a). 1 Defendant states

counsel advised him that if he rejected the Government’s plea offer and a consequent

ten-year sentence of imprisonment, he would receive a fifteen-year sentence if found

guilty following trial. Defendant says “[w]eighing a 5-year difference between

pleading guilty and taking his chances at standing trial, Defendant elected to proceed

to trial.”

Now Defendant says he just recently learned that had he accepted the

Government’s plea offer and pleaded guilty to a § 2244(a)(1) violation, his guideline

range would have been 6–12 months. In its order denying Defendant post-conviction

relief, however, the district court explained Defendant’s sentencing range calculation

1 Section 2241(a) provides “[w]hoever . . . knowingly causes another person to engage in a sexual act . . . by using force against that other person . . . shall be fined under this title, imprisoned for any term of years or life, or both.” Meanwhile, §2244(a) provides “[w]hoever . . . knowingly engages in or causes sexual contact with or by another person, if so to do would violate . . . subsection (a) or (b) of section 2241 of this title had the sexual contact been a sexual act, shall be fined under this title, imprisoned not more than ten years, or both.”

2 is incorrect because of the guideline’s relevant conduct provisions:

Defendant argues that if he had accepted the plea agreement there would have been no evidence of force. Therefore, Defendant argues, the plea agreement would have established a base offense level of 12 [instead of the base offense level 30 he received following trial]. *** Regardless of which statute is used, the forcible nature of Defendant’s actions [as illustrated by the trial testimony] remains. Thus, even had he pleaded to Abusive Sexual Contact, the fact that he committed the act using force would remain. Thus, Defendant’s actions would have involved conduct described in 18 U.S.C. § 2241(a). As a result, the U.S.S.G. § 2A3.4(c)(1) cross reference would apply and Defendant’s base offense level would be 30 [just as it was after trial] as set by U.S.S.G. § 2A3.1. The plea agreement did not change the minimum sentence Defendant would face. Rather, had he accepted the plea agreement, his sentence would have been capped at 10 years by the statutory maximum imposed by 18 U.S.C. § 2241(a)(1).

Clearly, Defendant suffered no prejudice from any failure on the part of

counsel to advise him of an erroneous 6–12 month guideline range in the event

Defendant accepted the Government’s plea offer. In fact, for counsel to so advise

Defendant would itself have been erroneous because Defendant’s guideline range

would not change regardless of whether he accepted the plea offer. Instead all that

would change from a plea agreement was that Defendant’s sentence would be capped

at the ten-year maximum and Defendant tells us he knew that before deciding to

reject the Government’s plea offer.

Defendant has not made a showing of the denial of a constitutional right that

might be debatable among reasonable jurists. See Slack v. McDaniel, 529 U.S. 473, 483 (2000). Accordingly, Defendant’s motion for a COA is DENIED. Defendant’s

3 motion to proceed on appeal in forma pauperis is DENIED as moot.

Entered for the Court,

Bobby R. Baldock United States Circuit Judge

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