United States v. Shaw

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ZACHARY ANDREW SHAW,

Defendant - Appellant.

No. 20-6052
(D.C. Nos. 5:19-CV-00457-R
5:16-CR-00160-R-2)
(W.D. Okla.)
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY
*

_________________________________
Before MATHESON, KELLY, and EID, Circuit Judges.
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Petitioner-Appellant Zachary Shaw, a federal inmate appearing pro se, seeks a
certificate of appealability (COA) to appeal the denial of his 28 U.S.C. § 2255
motion. In 2016, Mr. Shaw pled guilty to possessing with the intent to distribute
mixed methamphetamine, in violation of 21 U.S.C. § 841(a)(1). The district court
sentenced him to 163 months’ imprisonment. Mr. Shaw appealed and we granted the
government’s motion to enforce the appeal waiver contained in the plea agreement
and dismissed the appeal. See United States v. Shaw, 752 F. App’x 631 (10th Cir.
2018).

*
This order is not binding precedent except under the doctrines of law of the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.
FILED
United States Court of Appeals
Tenth Circuit

October 6, 2020

Christopher M. Wolpert
Clerk of Court
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2

Following the dismissal, Mr. Shaw filed a § 2255 motion in the district court
alleging ineffective assistance of counsel because counsel (1) misunderstood how the
Sentencing Guidelines operated; (2) failed to argue that the sentencing disparity
between mixed and actual methamphetamine justified a lower sentence; and (3) did
not seek specific performance of his plea agreement, which was based on mixed, as
opposed to pure, methamphetamine. The district court rejected these arguments and
denied Mr. Shaw’s § 2255 motion. United States v. Shaw, Nos. CR-16-160-R; CIV-
19-457-R, 2019 WL 7116109 (W.D. Okla. Dec. 23, 2019).
On appeal, Mr. Shaw pursues the third ground. He points out that his plea
agreement explicitly refers to mixed methamphetamine — rather than pure
methamphetamine — which caused him and his attorney to believe his base level
offense would be 32 rather than 36. He states that he was not informed of a lab
report that indicated the methamphetamine was 95% pure. The district court
concluded that counsel could not have been ineffective for failing to raise this issue
because the plea agreement was not breached; the plea agreement stated nothing
about purity or quantity and Mr. Shaw was informed of the maximum exposure.
Shaw, 2019 WL 7116109, at *3–4.
To obtain a COA, Mr. Shaw must make “a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, the district court
rejected Mr. Shaw’s constitutional claims on the merits, he “must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). We do
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not think that the district court’s resolution of the issues is reasonably debatable
because Mr. Shaw cannot establish deficient performance or prejudice given that the
plea agreement was not breached. See Strickland v. Washington, 466 U.S. 668, 687–
88, 694 (1984).
We DENY a COA and DISMISS the appeal.
Entered for the Court

Paul J. Kelly, Jr.
Circuit Judge
Appellate Case: 20-6052 Document: 010110418926 Date Filed: 10/06/2020 Page: 3