UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

CALDERON, LIZETTE


98-3014a

D.C. Cir. 1999


*	*	*


Opinion for the Court filed Per Curiam.


Per Curiam: Having pled guilty to possession of almost 10  kilograms of
cocaine with intent to sell, appellant Lizette  Calderon now appeals
her sentence of 97 months incarcera- tion followed by 5 years of
supervised release. We affirm the  district court's sentence in all
respects save for the term of  supervised release.


While traveling by train from Miami to New York City in  June of 1990,
Calderon and her cousin were arrested in Union  Station in Washington,
D.C., after Amtrak police searched  their bags and found 9,871 grams
of 100% pure cocaine.  They were charged with one count of unlawful
possession  with intent to distribute 5 kilograms or more of cocaine.
21  U.S.C. ss 841(a) & (b)(1)(A)(ii) (1994). Calderon absconded 
before her scheduled trial date and was rearrested seven  years later
in Puerto Rico.


As part of a written agreement, in which Calderon agreed  to plead
guilty to one count of possession with intent to  distribute 5
kilograms or more of cocaine, the parties agreed  (1) that the safety
valve provision of the guidelines should  apply so as to make the
mandatory minimum sentence for the  charge inapplicable; (2) that
Calderon should receive a two  level reduction for acceptance of
responsibility and that she  would not seek other adjustments to her
offense level; (3)  that Calderon could seek a downward departure at
sentencing  and that the government could oppose such a departure; (4)
 that the government could advocate a sentencing enhance- ment for
obstruction of justice, but would not advocate other  enhancements or
an upward departure; and (5) that the  government would not oppose
sentencing at the bottom of the  guideline range. While not specified
in the written plea  agreement, the failure to appear charge was
dropped prior to  the court's consideration of Calderon's plea.


At her sentencing hearing, Calderon made four arguments  to the
district court: (1) Her decision to accept $25,000 for  transporting
the cocaine arose out of economic duress be-


cause she desperately needed the money to make a down  payment on a
house so as to free herself from her abusive  boyfriend; (2) she had
shown extraordinary rehabilitation  because she had not committed any
crimes since she jumped  bail; (3) her extreme depression constituted
diminished ca- pacity; (4) this crime was a single act of aberrant
behavior  despite the fact that she admitted to using drugs
previously.  Carefully considering the record, the district court
appropri- ately found each of these arguments wholly without merit, 
sentencing her to 97 months in prison (the bottom of the  recommended
range according to the sentencing guidelines)  and 5 years of
supervised release. Calderon argues that the  district court erred by
failing to consider her claims in  combination, or in the alternative,
that her trial counsel was  ineffective for failing to ask the court
to consider the claims in  combination.


We need not consider whether the trial court should have  considered
her claims in combination for it is clear from the  record that
Calderon would have gained nothing from the  combined consideration of
four completely frivolous claims.  Moreover, because considering these
claims in combination  would not have affected the sentence the
district court im- posed, Calderon cannot show that her counsel's
performance  was constitutionally ineffective. See Strickland v.
Washing- ton, 466 U.S. 668, 694 (1984) ("The defendant must show that 
there is a reasonable probability that, but for counsel's unpro-
fessional errors, the result of the proceeding would have been 


Despite the fact that she agreed as part of a valid plea  bargain not
to seek any other downward adjustments to her  sentence, Calderon
nevertheless maintains that the district  court erred by failing to
consider her a "minor" or "minimal  participant" under Sentencing
Guideline section 3B1.2(a).  She notes that the Commentary to the
Sentencing Guidelines  explicitly envisions "a case where an
individual was recruited  as a courier for a single smuggling
transaction involving a  small amount of drugs." U.S.S.G. s 3B1.2,
comment. (n.2).  While we seriously doubt whether the amount of drugs 
involved in this case (10 kilograms of pure cocaine with a 


street value of almost $2 million) constitutes a "small  amount," we
need not reach that issue as the plea agreement  barred defendant's
claim. Moreover, Calderon has failed to  support her claim that her
agreement to the relevant terms of  the plea bargain was unknowing or
involuntary. The plea  agreement, which she signed, stated: "I fully
understand this  agreement and agree to it without reservation. I do
this  voluntarily and of my own free will." The district court 
repeatedly asked her whether she understood and agreed  voluntarily to
the terms of the plea bargain, and she re- peatedly answered in the
affirmative. Nothing in the plea  colloquy suggests any duress or lack
of understanding of the  plea bargain's terms. And Calderon received
an objectively  favorable deal by the government dropping her charge
for  failure to appear.


In the alternative, Calderon argues that her counsel was  ineffective
for agreeing to a clause in the plea agreement  limiting the legal
grounds she could assert to reduce her  sentence. In order to set
aside the plea agreement for  ineffective assistance of counsel,
Calderon must show that her  "attorney performed below an objective
standard of reason- ableness, causing a 'reasonable probability that,
but for coun- sel's errors, [she] would not have pleaded guilty and
would  have insisted on going to trial.' " United States v. Holland, 
117 F.3d 589, 594 (D.C. Cir. 1997) (quoting Hill v. Lockhart,  474
U.S. 52, 59 (1985)). Calderon has not even alleged that  she would
otherwise have gone to trial. Moreover, it is well  within the realm
of valid strategic decisions of competent  counsel not to seek
adjustments to a client's base offense level  when the government is
willing both to drop a charge for  failure to appear and to forego
seeking adjustments that  would increase a sentence. See Strickland,
466 U.S. at 689  ("[A] court 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
pre- sumption that, under the circumstances, the challenged action 
'might be considered sound trial strategy.' " (quoting Michel  v.
Louisiana, 350 U.S. 91, 101 (1955))). We cannot agree  with Calderon


adhesion"; indeed, its terms do not suggest even a hint of 
unfairness.


Finally, Calderon challenges the district court's imposition  of 5
years of supervised release, arguing that the district  judge was
unaware that under Sentencing Guideline section  5D1.2(a) he had the
discretion to sentence her to as few as 3  years of supervised
release. See U.S.S.G. s 5D1.2(a) ("[I]f a  term of supervised release
is ordered, the length of the term  shall be: (1) at last three years
but not more than five years  for a defendant convicted of a Class A
or B felony...."). We  agree. The pre-sentence report, upon which the
court based  its sentence, erroneously stated that the Guidelines
required  "a term of 5 years." Apparently following that recommenda-
tion, the district court wrote "- to 5 years" in the row  designated
the "Supervised Release Range" on the "State- ment of Reasons" of the
judgment form. Given that the  district court admitted that if the
court were not "locked in by  the guidelines in this case," it "would
most likely not sentence  you to what is called for under the
guidelines," and given that  the court chose the lowest possible
prison term from the  range specified in the guidelines, it seems
quite probable that  the court would also have sentenced Calderon to a
term of  supervised release lower than the maximum specified in the 


This case is remanded for the district court to exercise its 
discretion with regard to the term of supervised release. In  all
other respects, we affirm.


So ordered.