MEMORANDUM & ORDER
John W. Lungstrum, United States District Judge.
On February 1, 2008, Monterial Wesley was charged along with twenty-three other individuals in a 39-count superseding indictment. After the jury was impaneled but before any evidence was presented, Mr. Wesley pled guilty to four counts of the indictment, including conspiracy to manufacture, to possess with intent to distribute, or to distribute cocaine base and/or cocaine. See United States v. Wesley, 423 Fed.Appx. 838 (10th Cir. 2011). He proceeded to trial on the eight remaining counts against him and was subsequently convicted on two of those counts. See Id . at 839.
At Mr. Wesley’s sentencing, the court found that Mr. Wesley was accountable for 150 kilograms of cocaine, had possessed a firearm, and did not qualify for an adjustment for acceptance of responsibility. See id. The sentencing guideline range was calculated to be 324 to 405 months and the court ultimately sentenced Mr. Wesley to 360 months’ imprisonment. See Id . On appeal to the Tenth Circuit, Mr. Wesley argued that the court relied on insufficient and unreliable evidence in assessing the drug quantity attributable to him and that he was entitled to a two-point reduction for acceptance of responsibility because he pled guilty to the most serious charge in the indictment. The Circuit affirmed the court’s rulings. Id.
This matter is now before the court on Mr. Wesley’s motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (doc. 1499). In that motion, Mr. Wesley raises six separate claims wherein he contends that the performance by trial and appellate counsel was deficient in violation of his Sixth Amendment right to counsel. “To establish ineffective assistance of counsel, a defendant must show ‘that counsel’s representation fell below an objective standard of reasonableness’ and that he was prejudiced by the deficient performance.” United States v. Moya, 676 F.3d 1211, 1213 (10th Cir. 2012) (quoting Strickland v. Washington, 466 U.S. 668, 687–88 (1984)). As will be explained, the court denies each of Mr. Wesley’s claims and denies Mr. Wesley’s request for an evidentiary hearing.
Permitting or Advising Mr. Wesley to Plead Guilty to Some Charges
Mr. Wesley contends that he received ineffective assistance of counsel in connection with his guilty plea. While his motion is not entirely clear, Mr. Wesley seems to contend, in one breath, that his counsel should not have permitted or advised him to plead guilty to some charges but not others; should not have permitted him to plead guilty to any charges; and should not have permitted him to proceed to trial on any charges. According to Mr. Wesley, his counsel failed to understand that by permitting Mr. Wesley to plead guilty to some but not all charges, Mr. Wesley would not be eligible for an acceptance of responsibility reduction for sentencing purposes. Mr. Wesley cites two cases that he contends absolutely preclude Mr. Wesley from a reduction for acceptance of responsibility if he proceeded to trial on some charges and he criticizes his counsel’s lack of familiarity with these cases. He references a Supreme Court decision that he identifies only as “Edwards” and a Tenth Circuit decision that he identifies only as “Pace.” The court has not uncovered any decisions so captioned that address acceptance of responsibility, so his counsel can hardly be faulted for overlooking them. And while Mr. Wesley’s decision to proceed to trial on some charges and to fully contest issues at trial certainly factored into the court’s decision not to award Mr. Wesley a reduction for acceptance of responsibility, he received some credit for pleading guilty in that the court decided not to sentence Mr. Wesley at the high end of the Guideline range in light of his plea.
In any event, the court is not persuaded that Mr. Wesley’s counsel would have been able to persuade Mr. Wesley not to plead guilty to some charges and proceed to trial on other charges. It was clear to the court that Mr. Wesley proceeded to trial on the specific charges that he did because those charges concerned conduct implicating members of his family as well as certain close friends, who were also proceeding to trial, such that he was reluctant to plead guilty to those charges. And it is difficult to discern any prejudice from the decision to plead guilty to the conspiracy charge, as Mr. Wesley did receive some benefit for his decision to plead guilty and undoubtedly would have been convicted at trial as his co-defendants were convicted. Mr. Wesley, then, has not established any prejudice as a result of his counsel’s alleged failure to persuade Mr. Wesley not to plead guilty to some but not all charges against him.
Mr. Wesley also contends, however, that his counsel should not have permitted him to plead guilty to any of the charges because by pleading guilty to the conspiracy charge, he had to admit to drug quantities sufficient to trigger a 10-year mandatory minimum sentence. The 10-year mandatory minimum triggered by the conspiracy count in this case is completely irrelevant in light of the fact that Mr. Wesley’s ultimate Guideline range and sentence was far beyond the statutory mandatory minimum. Mr. Wesley cannot establish any prejudice in this respect. Mr. Wesley also contends, seemingly conversely, that his counsel should not have permitted him to proceed to trial on any of the charges because his offense level would have been the same even if he had pleaded guilty to all charges. As explained earlier, Mr. Wesley was determined to proceed to trial on the specific charges implicating his brother and his girlfriend and there is no suggestion in the record that he would have accepted a plea agreement on those charges whatever his counsel’s advice. Indeed, Mr. Wesley himself does not even state that he would have accepted a plea on those charges. Again, he cannot establish any prejudice.
In the end, Mr. Wesley’s brief reflects that he was not happy with any of the options available to him—he is unhappy that he decided to plead guilty to some charges and proceed to trial on other charges, but he indicates that it would have been a mistake to proceed to trial on all charges (because a conviction was all but guaranteed and presumably there would have been no benefit to him in terms of sentencing) and that it would have been a mistake to plead guilty to all charges (because of the required factual admissions on the conspiracy charge). Mr. Wesley does not indicate, then, what his counsel should have advised him to do and, in truth, there was little if anything his counsel could have done in light of the overwhelming evidence against Mr. Wesley and his apparent insistence on proceeding to trial on those counts implicating his family and close friends. While it is perhaps not surprising that none of the options available to Mr. Wesley were particularly satisfying to him, Mr. Wesley’s dissatisfaction is a product of his own doing rather than his counsel’s doing.
Failure to Adequately Object to Denial of Two-Level Reduction for Acceptance of Responsibility
According to Mr. Wesley, his trial counsel failed to assert a “relevant” objection at sentencing to the denial of a two-point reduction for acceptance of responsibility. Mr. Wesley asserts that his decision to plead guilty to the conspiracy charge was sufficient to permit the court to grant the two-level reduction and he criticizes his counsel’s failure to convince the court to award the reduction. This claim is denied. Mr. Wesley’s counsel, in fact, made a detailed objection urging the court to grant Mr. Wesley the two-level reduction for acceptance of responsibility in light of his decision to plead guilty to the most serious charge against him and because the government would have had to proceed to trial in any event against Mr. Wesley’s co-defendants and to present the same evidence regardless of whether Mr. Wesley proceeded to trial on the remaining counts. At Mr. Wesley’s sentencing, his counsel followed up on the objection with what the court acknowledged was an “excellent argument” in favor of granting the reduction to Mr. Wesley.
In the end, however, the court, despite the vigorous argument made by counsel, overruled the objection based on its determination that Mr. Wesley did not accept the wrongfulness of his conduct or the seriousness of his conduct sufficient to warrant a reduction in the face of a decision to proceed to trial on some counts. This determination was based on the fact that Mr.
Wesley fully contested certain issues at trial and contested the drug quantities attributed to him both during the plea process and in the sentencing context. Moreover, the court did give some credit to Mr. Wesley for pleading guilty to the most serious charge by declining to sentence Mr. Wesley to the high end of the applicable guidelines range. Finally, the Tenth Circuit affirmed the court’s decision to deny Mr. Wesley the two-level reduction despite counsel’s objection to that denial.
Mr. Wesley’s claim, then, essentially amounts to a complaint that his counsel’s objection to the denial of the two-level reduction was not sufficiently persuasive to convince the court to award the reduction. It is well established that the mere fact that counsel’s arguments are unsuccessful does not render counsel’s performance constitutionally deficient. The claim, then, is denied. United States v. Miller, 464 Fed.Appx. 750, 752 (10th Cir. 2012) (failure to obtain favorable outcome not proof of deficiently performance); United States v. Mullane, 226 Fed.Appx. 810, 813 (10th Cir. 2007) (unsuccessful attempts by counsel to persuade court to impose lower sentence does not suggest performance deficient); United States v. Harfst, 168 ...