United States v. Seamster

Appellate Case: 22-4003 Document: 010110695289 Date Filed: 06/10/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 10, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-4003
(D.C. Nos. 1:21-CV-00093-DBB &
ALLEN WAYNE SEAMSTER, 1:20-CR-00015-DBB-1)
(D. Utah)
Defendant - Appellant.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before HARTZ, BALDOCK, and McHUGH, Circuit Judges.
_________________________________
Allen Wayne Seamster pleaded guilty to one count of unlawful receipt of a firearm
which was not registered, in violation of 26 U.S.C. § 5861(d), in exchange for the
Government dismissing charges of felon in possession of firearms and possession of
methamphetamine. The district court imposed a sentence of 18 months’ imprisonment,
followed by 2 years’ supervised release. Mr. Seamster, proceeding pro se,1 filed a 28
U.S.C. § 2255 motion challenging his conviction, arguing counsel rendered ineffective
*
This order is not binding precedent except under the doctrines of law of the case,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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.
1
Because Mr. Seamster proceeds pro se, the standard that “we liberally construe
his filings” applies. James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). We,
however, observe Mr. Seamster ably and clearly presented his arguments.
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assistance when advising him to plead guilty and by not filing a notice of appeal. The
district court denied the motion and denied a certificate of appealability (“COA”).
Concluding Mr. Seamster has not satisfied the deficient performance prong on either of
his ineffective assistance of counsel claims, we deny a COA and dismiss this matter.
I. BACKGROUND
In November 2019, authorities with the Department of Homeland Security
investigated the shipment of a firearm suppressor from China to the United States,
obtaining a search warrant for Mr. Seamster’s home because he was the consignee listed
on the package. Execution of the search warrant and of consent-based searches of
outbuildings and vehicles on Mr. Seamster’s property resulted in the seizure of the
suppressor, as well as a National Ordnance 1903A3 .30-06 caliber rifle, a Savage Arms
93R17 .17 caliber rifle, and approximately ten grams of methamphetamine. The
suppressor was not registered. And, at the time of the search, Mr. Seamster had a prior
felony conviction prohibiting him from possessing a firearm.
Through a three-count indictment, a grand jury charged Mr. Seamster with felon in
possession of firearms, in violation of 18 U.S.C. § 922(g)(1); possession of an
unregistered silencer, in violation of 26 U.S.C. § 5861(d); and possession of
methamphetamine, in violation of 21 U.S.C. § 844(a). In accord with the advice of
counsel, Mr. Seamster agreed to plead guilty to the possession of an unregistered silencer
charge in exchange for the Government dismissing the other two charges. When pleading
guilty, Mr. Seamster admitted he (1) “purchased multiple silencers online, although [he]
only received one”; (2) “knew the characteristics and purpose of the silencer made it
2
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registrable under the National Firearms Registration and Transfer Record but that it was
not registered to [him]”; (3) “used the silencer and that it was in operating condition”;
and (4) knew “the silencer is a firearm under 26 USC Section 5845(a)(7) and that [his]
conduct violated 26 USC 5861(d).” ROA Vol. 1 at 57; see also id. at 25–26. While
entering his guilty plea, Mr. Seamster also advised the court that he had adequate
opportunity to confer with counsel and counsel advised him about the plea agreement.
The plea agreement obligated the Government to recommend a sentence at the low end of
the calculated Sentencing Guidelines range, and the parties contemplated that the low end
of the range would be around 18 months.
A Presentence Investigation Report (“PSR”) advanced a Sentencing Guidelines
range of 24 to 30 months. The district court adopted the PSR without objection. In his
allocution, Mr. Seamster admitted the firearms were on his property and the
methamphetamine belonged to him. The district court imposed a below-Guidelines
sentence of 18 months’ imprisonment. Mr. Seamster did not file an appeal.
Eight months after sentencing, Mr. Seamster commenced the current proceeding
by filing a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255.2 Through his § 2255 motion, Mr. Seamster argued counsel provided ineffective
assistance by not (1) investigating whether the suppressor was a silencer that needed to be
2
Although Mr. Seamster has now completed his term of imprisonment, by virtue
of still serving supervised release, he remains “in custody” for purposes of being able to
pursue § 2255 relief. See United States v. Cervini, 379 F.3d 987, 989 n.1 (10th Cir. 2004)
(concluding individual on supervised release at time he files § 2255 motion is “in
custody” and may pursue relief).
3
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registered; (2) filing pretrial motions, including a motion to suppress; (3) negotiating a
more favorable plea agreement; and (4) filing a notice of appeal.3 The Government filed a
response, with an affidavit from counsel attached. Counsel averred that while he
conducted some research on whether the suppresser was a silencer that needed to be
registered, he did not believe he could obtain dismissal of the charge and thought it
beneficial to focus the plea agreement on the unregistered silencer charge because doing
so permitted for the dismissal of the methamphetamine charge and the felon in possession
of firearms charge. Counsel believed, in the context of sentencing, the methamphetamine
and firearms charges were the more serious charges so there was an advantage to
Mr. Seamster pleading guilty to the unregistered silencer charge. Counsel also expressed
concern that if he pursued dismissal of the unregistered silencer charge, the prosecutor
might be less willing to offer Mr. Seamster a favorable plea agreement. Mr. Seamster
filed a reply and a declaration regarding his notice of appeal issue, in which he admitted
counsel discussed the probability of success if he pursued an appeal.
3
Although in his § 2255 motion, as part of his second and third claims,
Mr. Seamster’s pre-plea ineffective assistance of counsel claims presented arguments
about more than the suppressor/silencer, he focuses his arguments in his application for a
COA on counsel’s (1) investigation of the suppressor and how dismissal of the
unregistered silencer charge might have benefited his position and (2) failure to file a
notice of appeal. Accordingly, we confine our discussion to these two matters. See United
States v. McIntosh, 723 F. App’x 613, 615 (10th Cir. 2018) (unpublished) (declining to
consider arguments raised in a § 2255 motion when the appellant made “no substantive
arguments concerning [those] rulings” in his COA application and opening brief);
Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have
declined to consider arguments that are not raised, or are inadequately presented, in an
appellant’s opening brief.”).
4
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The district court denied Mr. Seamster’s § 2255 motion, holding Mr. Seamster did
not establish deficient performance on any of his claims of ineffective assistance of
counsel. The court concluded counsel had a strategic basis for not further investigating
whether the suppressor was a silencer that needed to be registered in that counsel
reasonably believed a conviction for possession of an unregistered silencer was more
favorable at sentencing than a methamphetamine conviction and/or a felon in possession
conviction. The court also concluded counsel discussed the possibility of an appeal with
Mr. Seamster, and Mr. Seamster did not ask counsel to file a notice of appeal.
Mr. Seamster requests a COA from this court.
II. DISCUSSION
We start by stating the standard governing the issuance of a COA. Then we
discuss the ineffective assistance of counsel claims raised by Mr. Seamster in his
application for a COA.
A. COA Standard
To appeal a district court’s denial of a § 2255 motion, a federal prisoner must first
obtain a COA from this court. 28 U.S.C. § 2253(c)(1)(B). We will issue a COA “only if
the applicant has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). When the district court’s denial of the § 2255 motion is on the
merits, “a prisoner satisfies this burden by ‘demonstrating that reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or wrong.’”
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United States v. Bedford, 628 F.3d 1232, 1234 (10th Cir. 2010) (brackets omitted)
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
B. Ineffective Assistance of Counsel Claims
To advance a claim of ineffective assistance of counsel, Mr. Seamster “must show
that counsel’s performance fell below an objective standard of reasonableness and that he
was prejudiced thereby,” which entails demonstrating a “reasonable probability” of a
more favorable outcome absent counsel’s deficient performance. United States v. Holder,
410 F.3d 651, 654 (10th Cir. 2005). Regarding the deficient performance prong, “we
‘must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action might be considered sound . . .
strategy.” Id. (quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)).
1. Pre-Plea Investigation of Suppressor
Mr. Seamster contends counsel provided ineffective assistance by not adequately
investigating whether the suppressor was a silencer that could be attached to a firearm
and needed to be registered for purposes of 26 U.S.C. § 5861(d). Mr. Seamster further
contends that had counsel investigated the matter and retained an expert, counsel would
have learned the suppressor was a “toy barrel suppressor for toy guns” and had never
been used on a firearm. Opening Br. at 14. This, Mr. Seamster argues, would have given
counsel a basis for moving to dismiss the unregistered silencer charge.
As part of his representation, “counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations
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unnecessary.” Strickland, 466 U.S. at 691. “[S]trategic choices made after less than
complete investigation are reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.” Id. at 690–91. “In any
ineffectiveness case, a particular decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy measure of deference to
counsel’s judgments.” Id. at 691.
Mr. Seamster fails to demonstrate that the district court’s rejection of this claim of
ineffective assistance of counsel is debatable or wrong. Counsel for Mr. Seamster
acknowledges he could have “dug deeper into whether the ‘toy barrel suppressor’ was a
silencer.” ROA Vol. 2 at 74. But, after determining it was not obvious that the suppressor
did not qualify as a silencer that needed to be registered, counsel made a strategic
decision not to investigate the matter further because, in his professional judgment,
pleading to the unregistered silencer charge in exchange for dismissal of the other
charges would benefit Mr. Seamster at sentencing. Meanwhile, as counsel noted in his
declaration, investigating the issue further might have (1) resulted in the elimination of a
factual basis for a guilty plea to the unregistered silencer charge, leaving Mr. Seamster
exposed to having to plead guilty to or being convicted on the methamphetamine charge
and/or the firearms charge,4 and (2) jeopardized the prosecutor’s willingness to offer a
4
Neither in his § 2255 motion to the district court nor in his COA application to us
does Mr. Seamster offer a plausible defense to the firearms charge or the
methamphetamine charge. In fact, at sentencing, Mr. Seamster admitted the
methamphetamine was his and that the firearms were on his property and he had access
to them. Further, as counsel foresaw, the unregistered silencer charge was at least less
7
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favorable plea agreement. Additionally, counsel was able to argue at sentencing that the
potential “toy” nature of the suppressor mitigated the offense. And where the district
court imposed a below-Guidelines sentence of 18 months, it appears counsel’s strategy
proved effective. Thus, given the totality of the circumstances, it was reasonable for
counsel to not further investigate whether the suppressor was a silencer that needed to be
registered. Accordingly, Mr. Seamster has not presented an argument causing debate
regarding the district court’s conclusion that counsel did not perform deficiently.5
Therefore, Mr. Seamster has not made a substantial showing of the denial of a
constitutional right, and we deny a COA on this issue.
2. Notice of Appeal
Mr. Seamster contends counsel provided ineffective assistance of counsel relative
to pursuing an appeal. In some circumstances, counsel has a duty to “consult” with his
client regarding filing an appeal by “advising the defendant about the advantages and
disadvantages of taking an appeal, and making a reasonable effort to discover the
defendant’s wishes.” United States v. Herring, 935 F.3d 1102, 1108 (10th Cir. 2019)
(quoting Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000)). This duty exists “when there
serious than the methamphetamine charge in that a conviction on the methamphetamine
charge would have carried a higher Guidelines range.
5
In passing, Mr. Seamster, in his application for a COA, contends he pleaded
guilty to the unregistered silencer charge only because counsel advised him that he would
receive a probation sentence. But nothing in the record supports the proposition that
either side anticipated a Sentencing Guidelines range of probation. And even if the record
did support this proposition, at the plea hearing, the court advised Mr. Seamster that his
actual sentence might exceed the Guidelines range and that such would not be a valid
basis for withdrawing his guilty plea.
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is reason to think either (1) that a rational defendant would want to appeal (for example,
because there are nonfrivolous grounds for appeal), or (2) that this particular defendant
reasonably demonstrated to counsel that he was interested in appealing.” Id. (quoting
Flores-Ortega, 528 U.S. at 480). In considering whether either of these circumstances
existed, relevant factors include “whether the conviction follows a trial or a guilty plea,”
“whether the defendant received the sentence bargained for as part of the plea,” and
“whether the plea expressly reserved or waived some or all appeal rights.” Id. (quoting
Flores-Ortega, 528 U.S. at 480). “Once the duty to consult is invoked by a defendant
expressing interest in appealing, trial attorneys must properly advise their client and
assess their client’s wishes before withdrawing from the case.” Id. at 1109 (citing Stds.
For Crim. Justice § 21-2.2 cmt. (Am. Bar Ass’n 1980)). Finally, “[a] defendant receives
ineffective assistance of counsel if his attorney disregards a specific instruction to take an
appeal from a conviction or sentence.” United States v. Parker, 720 F.3d 781, 785 (10th
Cir. 2013).
The record makes clear that counsel had a conversation with Mr. Seamster about
pursuing an appeal. Mr. Seamster declared that counsel discussed the sentencing hearing
with him, advised him that the district court had been very lenient, and stated
Mr. Seamster should be pleased because he got the best deal possible. Counsel further
indicated that even if Mr. Seamster appealed, he would likely get the same sentence.
ROA Vol. 3 at 2. Thus, to the extent counsel had a duty to consult with Mr. Seamster
9
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about an appeal, counsel satisfied that duty.6 Furthermore, as found by the district court,
nothing in Mr. Seamster’s declaration or § 2255 motion asserts that he directed counsel to
file a notice of appeal. See id.; ROA Vol. 2 at 43–46 (contending only that “the record
fails to conclusively establish that [Mr.] Seamster did not instruct [counsel] to file a
notice of appeal”); see also Opening Br. at 16 (Mr. Seamster contending he did not
communicate with counsel after the day of sentencing and asserting only that “[t]here is
also no evidence that [Mr.] Seamster did not instruct counsel to file a Notice of
Appeal”).7 And, as discussed supra in footnote 6, the facts of the case would not have
caused counsel to infer that Mr. Seamster was interested in pursuing an appeal.
Accordingly, Mr. Seamster has not presented an argument causing debate regarding the
district court’s conclusion that counsel did not perform deficiently. Therefore,
6
Because the record is clear that counsel did “consult” with Mr. Seamster about
an appeal, we need not determine whether counsel had a duty under Roe v.
Flores-Ortega, 528 U.S. 470 (2000), to consult. But, for purposes of assessing whether
Mr. Seamster expressed a desire to pursue an appeal, we observe that (1) Mr. Seamster’s
conviction followed a guilty plea; (2) Mr. Seamster received a sentence contemplated
when he entered into the plea agreement; and (3) the plea agreement contained an
appellate waiver that expressly waived any challenge that Mr. Seamster’s “conduct d[id]
not fall within the scope of the statute” and only reserved Mr. Seamster’s right to appeal
from a sentence above the statutory maximum or above the top end of the Guidelines
range, ROA Vol. 1 at 28.
7
Mr. Seamster also faults the district court for not conducting an evidentiary
hearing. “We review the denial of an evidentiary hearing in a § 2255 proceeding for an
abuse of discretion.” United States v. Clingman, 288 F.3d 1183, 1187 n.4 (10th Cir.
2002). Here, the district court did not abuse its discretion in ruling on the § 2255 motion
without an evidentiary hearing because Mr. Seamster, by never alleging that he
affirmatively asked counsel to file a notice of appeal, did not create a dispute of fact on
the matter.
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Mr. Seamster has not made a substantial showing of the denial of a constitutional right,
and we deny a COA on this issue.
III. CONCLUSION
We DENY a COA and DISMISS this matter.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
11