United States v. James E. Walling, 982 F.2d 447 (10th Cir. 1992). · Go Syfert
United States v. James E. Walling, 982 F.2d 447 (10th Cir. 1992). Cases Citing This Book View Copy Cite
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cited 2× by 2 distinct cases, last quoted 2009 · …below an objective standard of reasonableness.
cited 2× by 2 distinct cases, last quoted 2005 · …the guidelines differentiate between departures and adjustments. at p. 449
79 citation events (36 in the last 25 years) across 12 distinct courts.
Strongest positive: United States v. Ione E. Fogg (ca8, 2005-05-20)
Treatment trajectory · 1993 → 2026 · click a year to view as-of
1993 2009 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) United States v. Ione E. Fogg
8th Cir. · 2005 · signal: see also · quote attribution · 1 verbatim quote · confidence high
the guidelines differentiate between departures and adjustments.
discussed Cited as authority (quoted) United States v. Calvin Allen
5th Cir. · 2019 · signal: see also · quote attribution · 1 verbatim quote · confidence low
the strickland ineffectiveness test dovetails naturally with the cause and prejudice standard.
discussed Cited as authority (rule) Coulter v. United States
W.D. Okla. · 2025 · confidence medium
Going a step further, the Tenth Circuit has emphasized that “Section 2255 is not available to test the legality of matters which should have been raised on appeal.” United States v. Allen, 16 F.3d 377, 378 (10th Cir. 1994) (internal alteration omitted and emphasis added) (citing United States v. Walling, 982 F.2d 447, 448 (10th Cir. 1992)).
cited Cited as authority (rule) United States v. Harbin
10th Cir. · 2025 · confidence medium
However, § 2255 motions are “not available to test the legality of matters which should have been raised on [direct] appeal.” United States v. Walling, 982 F.2d 447, 448 (10th Cir. 1992).
discussed Cited as authority (rule) Dean v. United States
W.D. Okla. · 2020 · confidence medium
Further, Defendant failed to file a direct appeal of his sentence; thus, his challenges are now procedurally barred. “‘[Section] 2255 is not available to test the legality of matters which should have been raised on appeal.’” United States v. Walling, 982 F.2d 447, 448 (10th Cir. 1992) (quoting United States v. Khan, 835 F.2d 749, 753 (10th Cir. 1987)).
cited Cited as authority (rule) Ruiz v. United States
D.N.M. · 2020 · confidence medium
In other words, “Section 2255 is not available to test the legality of matters which should have been raised on appeal.” Id. (quoting United States v. Walling, 982 F.2d 447, 448 (10th Cir. 1992)).
cited Cited as authority (rule) Wilson (ID 63329) v. Schnurr
D. Kan. · 2019 · confidence medium
In other words, petitioner must prove that counsel performed “below an objective standard of reasonableness.” United States v. Walling, 982 F.2d 447, 449 (10th Cir. 1992).
cited Cited as authority (rule) United States v. Baldwin
10th Cir. · 2018 · confidence medium
United States v. Walling, 982 F.2d 447, 448 (10th.
discussed Cited as authority (rule) United States v. Snider
10th Cir. · 2012 · confidence medium
Specifically, “[§] 2255 is not available to test the legality of matters which should have been raised on appeal,” United States v. Allen, 16 F.3d 377, 378 (10th Cir.1994) (quoting United States v. Walling, 982 F.2d 447, 448 (10th Cir.1992)) (internal quotation marks omitted); see also United States v. Frady, 456 U.S. 152, 165 , 102 S.Ct. 1584 , 71 L.Ed.2d 816 (1982), such as Mr. Snider’s claim of government plea-agreement breach.
cited Cited as authority (rule) United States v. Anderson
10th Cir. · 2012 · confidence medium
This requires showing that counsel’s performance was “below an objective standard of reasonableness.” United States v. Walling, 982 F.2d 447, 449 (10th Cir.1992).
discussed Cited as authority (rule) United States v. Challoner
10th Cir. · 2009 · confidence medium
In such a circumstance, the “error must rise to the level of ineffective assistance of counsel, however, for [a] defendant to overcome the failure to raise the claim.” United States v. Walling, 982 F.2d 447, 449 (10th Cir.1992); see also Murray v. Carrier, 477 U.S. 478, 488 , 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986) (“Ineffective assistance of counsel, then, is cause for a procedural default.”).
cited Cited as authority (rule) United States v. Young
D. Kan. · 2008 · confidence medium
United States v. Allen, 16 F.3d 377, 378 (10th Cir.1994) (citing United States v. Walling, 982 F.2d 447, 448 (10th Cir.1992)).
discussed Cited as authority (rule) Richmond v. Polk
4th Cir. · 2004 · confidence medium
Even if we were to agree with Richmond that cause exists to excuse his procedural default, we conclude, as explained below, that Richmond is unable to show that he was actually prejudiced by his trial counsel’s alleged ineffectiveness.7 7 In concluding that Richmond cannot establish actual prejudice to excuse his procedural default, we note that there is a question as to "whether the showing of prejudice required to excuse procedural default is identical to the showing of prejudice required to establish ineffective assistance of counsel, namely, that ‘there is a reasonable probability that…
discussed Cited as authority (rule) Earl Richmond, Jr. v. Marvin L. Polk, Warden, Central Prison, Raleigh, North Carolina
4th Cir. · 2004 · confidence medium
In concluding that Richmond cannot establish actual prejudice to excuse his procedural default, we note that there is a question as to "whether the showing of prejudice required to excuse procedural default is identical to the showing of prejudice required to establish ineffective assistance of counsel, namely, that 'there is a reasonable probability that, but for the [errors], the result- of the proceeding would have been different.’ ” Burket v. Angelone, 208 F.3d 172 , 189 n. 17 (4th Cir.2000) (quoting Strickland, 466 U.S. at 694 , 104 S.Ct. 2052 ); see also Williams v. French, 146 F.3d …
discussed Cited as authority (rule) United States v. Brown
10th Cir. · 2004 · confidence medium
“Adjustments are changes to the total offense level calculated under the guidelines, while a departure is a sentence imposed outside the designated guideline range.” United States v. Walling, 982 F.2d 447, 449 (10th Cir.1992).
discussed Cited as authority (rule) United States v. Gaines
10th Cir. · 2004 · confidence medium
"Adjustments are changes to the total offense level calculated under the guidelines, while a departure is a sentence imposed outside the designated guideline range.” United States v. Walling, 982 F.2d 447, 449 (10th Cir.1992).
discussed Cited as authority (rule) Gross v. State
Md. · 2002 · confidence medium
See, e.g., State v. Calhoun, 306 Md. 692, 729 , 511 A.2d 461, 479-80 (1986); United States v. Cook, 45 F.3d 388, 392 (10th Cir.1995); United States v. Dixon, 1 F.3d 1080, 1083 (10th Cir.1993); United States v. Walling, 982 F.2d 447, 449 (10th Cir.1992); Duhamel v. Collins, 955 F.2d 962, 967 (5th Cir.1992); Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir.1991); Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir.1989); Orazio v. Dugger, 876 F.2d 1508, 1511 (11th Cir.1989); Gray v. Greer, 800 F.2d 644, 646 (7th Cir.1986); United States v. Birtle, 792 F.2d 846, 847 (9th Cir.1986).
cited Cited as authority (rule) United States v. Fabiano
10th Cir. · 2002 · confidence medium
United States v. Walling, 982 F.2d 447, 448-49 (10th Cir.1992).
cited Cited as authority (rule) United States v. Hughes
10th Cir. · 2002 · confidence medium
See, e.g., United States v. Dixon, 1 F.3d 1080, 1083 (10th Cir.1993); United States v. Walling, 982 F.2d 447, 449 (10th Cir.1992).
discussed Cited as authority (rule) United States v. Nelson
D. Kan. · 2001 · confidence medium
Failure To Raise Claim On Direct Appeal Defendant’s Apprendi claims also are procedurally barred because he failed to raise them on direct appeal. “[Section] 2255 is not available to test the legality of matters which should have been raised on appeal.” United States v. Allen, 16 F.3d 377, 378 (10th Cir.1994) (quoting United States v. Walling, 982 F.2d 447, 448 (10th Cir.1992)).
discussed Cited as authority (rule) United States v. Moss
D. Kan. · 2001 · confidence medium
Failure To Raise Claim On Direct Appeal The government next argues that defendant’s Apprendi claims are procedurally barred because he failed to raise them on direct appeal. “[Section] 2255 is not available to test the legality of matters which should have been raised on appeal.” United States v. Allen, 16 F.3d 377, 378 (10th Cir.1994) (quoting United States v. Walling, 982 F.2d 447, 448 (10th Cir.1992)).
discussed Cited as authority (rule) United States v. Tush
D. Kan. · 2001 · confidence medium
Failure To Raise Claim On Direct Appeal The government next argues that defendant’s claims are procedurally barred because he failed to raise them on direct appeal. “[Section] 2255 is not available to test the legality of matters which should have been raised on appeal.” United States v. Allen, 16 F.3d 377, 378 (10th Cir.1994) (quoting United States v. Walling, 982 F.2d 447, 448 (10th Cir.1992)).
examined Cited as authority (rule) Klein v. United States (3×) also: Cited "see"
D. Wyo. · 2000 · confidence medium
United States v. Walling, 982 F.2d 447, 449 (10th Cir.1992).
discussed Cited as authority (rule) Shaughnessy v. United States
D. Wyo. · 2000 · confidence medium
“Section 2255 is not available to test the legality of matters which should have been brought on direct appeal.” United States v. Walling, 982 F.2d 447, 448 (10th Cir.1992), citing United States v. Khan, 835 F.2d 749, 753 (10th Cir.1987).
cited Cited as authority (rule) Williams v. French
4th Cir. · 1998 · confidence medium
Cir. 1998); United States v. Walling, 982 F.2d 447, 449 (10th Cir. 1992).
discussed Cited as authority (rule) Larry Darnell Williams v. James B. French, Warden, Central Prison, Raleigh, North Carolina Michael F. Easley, Attorney General of North Carolina
4th Cir. · 1998 · confidence medium
See Freeman v. Lane, 962 F.2d 1252 , 1258-59 & n. 5 (7th Cir.1992) (discussing distinction between procedural bar and ineffective assistance "prejudice" tests); see also United States v. Dale, 140 F.3d 1054 , 1056 n. 3 (D.C.Cir.1998); United States v. Walling, 982 F.2d 447, 449 (10th Cir.1992).
discussed Cited as authority (rule) United States v. Cosby (2×) also: Cited "see"
D. Kan. · 1997 · confidence medium
Defendant must establish that counsel’s “representation fell below an objective standard of reasonableness.” United States v. Walling, 982 F.2d 447, 449 (10th Cir.1992).
discussed Cited as authority (rule) United States v. McDonald
10th Cir. · 1997 · confidence medium
It is a well-established rule in this circuit that § 2255 “‘is not available to test the legality of matters which should have been raised on appeal.’” United States v. Allen, 16 F.3d 277, 378 (10th Cir. 1994) (quoting United States v. Walling, 982 F.2d 447, 448 (10th Cir. 1992)).
discussed Cited as authority (rule) United States v. Watkins
10th Cir. · 1996 · confidence medium
United States v. Walling, 982 F.2d 447, 448 (10th Cir.1992). 6 AFFIRMED. 7 --------------- * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.
cited Cited as authority (rule) United States v. Jerry Craig Coleman
10th Cir. · 1996 · confidence medium
United States v. Walling, 982 F.2d 447, 448-449 (10th Cir.1992).
discussed Cited as authority (rule) United States v. James Douglas Donahue
10th Cir. · 1995 · confidence medium
Neither the government nor the district court's order addressed procedural bar, see United States v. Walling, 982 F.2d 447, 448-49 (10th Cir.1992); United States v. Khan, 835 F.2d 749, 753-54 (10th Cir.1987), cert. denied, 487 U.S. 1222 (1988), and we do not consider it here.
cited Cited as authority (rule) United States v. Margaret Joan Patterson
10th Cir. · 1995 · confidence medium
United States v. Walling, 982 F.2d 447, 448-449 (10th Cir.1992); United States v. Khan, 835 F.2d 749, 753 (10th Cir.1987), cert. denied, 487 U.S. 1222 (1988).
cited Cited as authority (rule) Charles A. Novey v. George Kilinger
10th Cir. · 1995 · confidence medium
Mr. Novey's failure to address these issues "in his direct appeal bars review unless he can show cause and resulting prejudice." United States v. Walling, 982 F.2d 447, 448-49 (10th Cir.1992).
cited Cited as authority (rule) United States v. Self
D. Colo. · 1995 · confidence medium
Allen, 16 F.3d at 378 (citing United States v. Walling, 982 F.2d 447, 448 (10th Cir.1992); United States v. Cook, 997 F.2d 1312, 1320 (10th Cir.1993) (citations omitted)).
cited Cited as authority (rule) United States v. Lewis Aaron Cook
10th Cir. · 1995 · confidence medium
See, e.g., United States v. Dixon, 1 F.3d 1080, 1083 (10th Cir.1993); United States v. Walling, 982 F.2d 447, 449 (10th Cir.1992).
discussed Cited as authority (rule) United States v. James Barnes (2×) also: Cited "see"
10th Cir. · 1994 · confidence medium
Vol. I, Doc. 223 at 3 (quoting Stirone v. United States, 361 U.S. 212, 217 (1960)). 5 Although not addressed below or raised by the government on appeal, the issue of procedural bar is pertinent. "[Section] 2255 is not available to test the legality of matters which should have been raised on appeal." United States v. Allen, 16 F.3d 377, 378 (10th Cir.1994); United States v. Walling, 982 F.2d 447, 448 (10th Cir.1992); United States v. Khan, 835 F.2d 749, 753 (10th Cir.1987), cert. denied, 487 U.S. 1222 (1988).
cited Cited as authority (rule) United States v. Jimmy Jess Guest
10th Cir. · 1994 · confidence medium
United States v. Walling, 982 F.2d 447, 449 (10th Cir.).
discussed Cited as authority (rule) Charles Robert Killingsworth v. United States
10th Cir. · 1994 · confidence medium
To prevail on an ineffective assistance claim, defendant must show "that his counsel's representation fell below an objective standard of reasonableness, ... [and] also that there is a reasonable probability that but for the error, he would have prevailed." United States v. Walling, 982 F.2d 447, 449 (10th Cir.1992)(citing Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)).
discussed Cited as authority (rule) United States v. Gary B. Hobbs, and Patrick Casey, Superintendent, Millington Federal Prison Camp Bureau of Prisons, Third-Party-Defendants (2×) also: Cited "see"
3rd Cir. · 1994 · confidence medium
United States v. Walling, 982 F.2d 447, 448-49 (10th Cir.1992). 6 Hobbs maintains attorney error caused him to forfeit his direct appeal. 2 Specifically, he argues his trial counsel told him he could not appeal any issues until the government made its decision whether to file a Fed.R.Crim.P. 35 motion to reduce the sentence.
cited Cited as authority (rule) United States v. David Joel Boatright
10th Cir. · 1994 · confidence medium
United States v. Walling, 982 F.2d 447, 448-49 (10th Cir.1992)
discussed Cited as authority (rule) United States v. Brian Leslie Allen (2×) also: Cited "see"
10th Cir. · 1994 · confidence medium
DISCUSSION Although not addressed below, the issue of procedural bar is pertinent and has been raised by the government on appeal. “[Section] 2255 is not available to test the legality of matters which should have been raised on appeal.” United States v. Walling, 982 F.2d 447, 448 (10th Cir.1992) (quoting United States v. Khan, 835 F.2d 749, 753 (10th Cir.1987), cert. denied, 487 U.S. 1222 , 108 S.Ct. 2881 , 101 L.Ed.2d 915 (1988)).
cited Cited as authority (rule) Kevin Winston Osborn v. Duane Shillinger, and Attorney General of the State of Wyoming
10th Cir. · 1993 · confidence medium
Id. at 688, 694 , 104 S.Ct. at 2064, 2068 ; United States v. Walling, 982 F.2d 447, 449 (10th Cir.1992).
cited Cited as authority (rule) United States v. Cleven Glenn Spratt
10th Cir. · 1993 · confidence medium
United States v. Walling, 982 F.2d 447, 449 (10th Cir.1992).
cited Cited as authority (rule) United States v. William Joseph \Liam\" Hutchinson"
10th Cir. · 1993 · confidence medium
United States v. Walling, 982 F.2d 447, 448-49 (10th Cir.1992).
cited Cited "see" United States v. Garrod
10th Cir. · 2010 · signal: see · confidence high
See United States v. Walling, 982 F.2d 447, 449 (10th Cir.1992).
cited Cited "see" United States v. Montgomery
D. Kan. · 2009 · signal: see · confidence high
See United States v. Allen, 16 F.3d 377, 378 (10th Cir.1994) (citing United States v. Walling, 982 F.2d 447, 448 (10th Cir.1992)).
cited Cited "see" United States v. Villarreal
10th Cir. · 2009 · signal: see · confidence high
See United States v. Walling, 982 F.2d 447, 448-49 (10th Cir. 1992) (citing United States v. Khan, 835 F.2d 749, 753 (10th Cir.1987)).
cited Cited "see" United States v. Hadley
10th Cir. · 2003 · signal: see · confidence high
See United States v. Walling, 982 F.2d 447, 449 (10th Cir.1992) (stating that ”[t]he guidelines differentiate between departures and adjustments”).
cited Cited "see" United States v. Maass
10th Cir. · 2002 · signal: see · confidence high
See United States v. Walling, 982 F.2d 447, 449 (10th Cir.1992) (applying the Strickland standard to assess the effectiveness of appellate counsel).
cited Cited "see" United States v. Dale, David M.
D.C. Cir. · 1998 · signal: see · confidence high
See Unit- ed States v. Walling, 982 F.2d 447, 449 (10th Cir. 1992); Freeman v. Lane, 962 F.2d 1252 , 1258-59 & n.5 (7th Cir. 1992); John C.
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
James E. WALLING, Defendant-Appellant
92-1054.
Court of Appeals for the Tenth Circuit.
Dec 30, 1992.
982 F.2d 447
1992 U.S. App. LEXIS 33788
1992 WL 385379
Michael J. Norton, U.S. Atty. and Stephen C. Peters, Asst. U.S. Atty., Denver, Colo., for plaintiff-appellee., James E. Walling, pro se.
McKay, Seymour, Kelly.
Cited by 60 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 64%
Citer courts: Fifth Circuit (1)
McKAY, Chief Judge.

In April, 1990, Defendant James E. Walling pleaded guilty to two counts of counterfeiting and one count of criminal contempt. He was sentenced under the federal sentencing guidelines to forty-one months imprisonment, to be followed by three years supervised release. In December, 1991, he filed this motion under 28 U.S.C. § 2255 challenging the validity of his plea agreement and resulting sentence. The district court dismissed the motion, and we affirm. [1]

Defendant entered into a plea agreement after lengthy negotiations. In its final form, it contained the following language:

The sentencing guidelines apply in these consolidated cases____ [T]he parties agree that Counts I and II of the Indictment in Criminal Case No. 88-CR-258 should be grouped together as closely related charges for purposes of sentencing computations and that, under sentencing guideline § 2B5.1(b)(2), the applicable base offense level is fifteen. It is also agreed that the defendant should receive an upward adjustment of two points for his role in these offenses pursuant to § 3Bl.l(c).
Both parties reserve the right to litigate the applicable criminal history category in this case. However, neither party reserves the right to move for upward or downward departure based from the applicable guideline range. WALLING understands that none of these calculations or agreements are binding on the Court.

Record, Vol. I, Doc. 1 (attachment at 3). Defendant contends the government breached this agreement when, at the sentencing hearing, it presented evidence in support of the probation department’s recommended upward adjustment for obstruction of justice. See U.S.S.G. § 3C1.1. The adjustment, which the court ultimately imposed, brought the total offense level to nineteen. Defendant argues that the plea agreement stipulated a total offense level of seventeen.

At the outset, we must determine whether this claim is properly before us. In the district court, the government argued that defendant’s challenge was improper because he did not raise this issue on direct appeal. Defendant responded that it was listed as an issue in the docketing statement, but was not briefed. He maintained that he did not know his counsel had abandoned the argument until he received a copy of this court’s opinion. He stated he had no control over his counsel’s failure to address the issue, and, therefore, he could not be held accountable for any waiver. The district court did not address these arguments in its dismissal order.

“[Section] 2255 is not available to test the legality of matters which should have been raised on appeal.” United States v. Khan, 835 F.2d 749, 753 (10th Cir.1987), cert. denied, 487 U.S. 1222, 108 S.Ct. 2881, 101 L.Ed.2d 915 (1988); sec also Suggs v. State Farm Fire & Casualty Co., 833 F.2d 883, 886 n. 4 (10th Cir.1987) (issues raised in docketing statement but not briefed are deemed waived), cert. denied, 486 U.S. 1007, 108 S.Ct. 1732, 100 L.Ed.2d 196 (1988). Defendant’s failure to address this issue in his direct appeal bars review[*449] unless he can show cause and resulting prejudice. See Khan, 835 F.2d at 753-54 (defendant must show cause for failure to raise issue of plea agreement breach on direct appeal); see also United States v. Frady, 456 U.S. 152, 167-69, 102 S.Ct. 1584, 1594-95, 71 L.Ed.2d 816 (1982) (defendant must show cause and prejudice to obtain collateral review where there was no objection at trial).

Defendant maintains that his attorney’s error in failing to brief this issue in the direct appeal constitutes cause sufficient to render review here appropriate. This error must rise to the level of ineffective assistance of counsel, however, for defendant to overcome the failure to raise the claim. Belford v. United States, 975 F.2d 310, 314 (7th Cir.1992). Thus, in order to satisfy the cause and prejudice standard, defendant must show not only that his counsel’s representation fell below an objective standard of reasonableness, but also that there is a reasonable probability that but for the error, he would have prevailed. See Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984).

The Strickland ineffectiveness test dovetails naturally with the cause and prejudice standard. Under both analyses, defendant must show he would have prevailed in his argument that the government breached the plea agreement. See Belford, 975 F.2d at 314. Although it is still unsettled whether the prejudice showing is exactly the same under both tests, we need not decide that issue because we have determined that defendant cannot meet either one. See Freeman v. Lane, 962 F.2d 1252, 1258-59 & n. 5 (7th Cir.1992) (discussing distinction between procedural bar and ineffective assistance “prejudice” tests).

The language of the plea agreement prohibited the government from moving for an upward departure from the applicable guideline range. Record, Vol. I, Doc. 1 (attachment at 3). In contrast, the evidence presented at the sentencing hearing related to the probation department’s efforts to obtain an upward adjustment in the total offense level. It is the distinction in meaning between “departures” and “adjustments” which is critical to our analysis.

The guidelines differentiate between departures and adjustments. See United States v. Joetzki, 952 F.2d 1090, 1097 (9th Cir.1991). Adjustments are changes to the total offense level calculated under the guidelines, while a departure is a sentence imposed outside the designated guideline range. Id.; see also United States v. Smith, 930 F.2d 1450, 1452-53 (10th Cir.) (discussing significance of distinction between adjustments and departures), cert. denied. — U.S. —, 112 S.Ct. 225, 116 L.Ed.2d 182 (1991). The plea agreement only prohibited the government from requesting an upward departure.

Defendant maintains this distinction is merely an exercise in semantics, and that the government is playing games with the language of the plea agreement. We disagree. The introduction to the sentencing guidelines describes with some detail the nature of a departure and the circumstances under which one can be sought. U.S.S.G. Ch. 1, Pt. A4(b), intro, comment. The adjustment which the probation department sought, and which the government supported, did not fall within this description. See U.S.S.G. § 3C1.1 (describing upward adjustment for obstruction of justice). This is a distinction which must be maintained in applying the guidelines.

It is not unfair to bind defendant to the intended meaning of the guidelines. He acknowledges that the plea agreement in this case was reached after extensive negotiations, including discussions about the obstruction of justice issue. He was represented by counsel throughout that period. Moreover, in the factual section of the plea agreement, defendant stipulated to facts supporting an upward adjustment for obstruction of justice. There is nothing in the plea agreement to indicate that the government agreed not to present evidence regarding an upward adjustment based on those stipulated facts.

Because defendant cannot prevail on the merits, he cannot satisfy either the standard for showing ineffective assistance of counsel or the cause and prejudice stan[*450] dard. Consequently, the district court’s dismissal was proper. Defendant’s motion for a transcript copy is DENIED. The judgment of the United States District Court for the District of Colorado is AFFIRMED.

1

. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.