Appellate Case: 24-4012 Document: 010111058482 Date Filed: 05/31/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 31, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 24-4012 (D.C. Nos. 2:23-CV-00858-DBB & BROK ARLIN RICE, 2:22-CR-00174-DS-1) (D. Utah) Defendant - Appellant. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________
Before PHILLIPS, BRISCOE, and CARSON, Circuit Judges. _________________________________
Brok Arlin Rice, a federal prisoner proceeding pro se, seeks a Certificate
of Appealability (COA) to appeal the district court’s denial of his 28 U.S.C.
§ 2255 petition. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we
deny a COA.
BACKGROUND
I. Conviction and Sentencing
In March 2022, Rice was arrested for violating his state parole after
parole officers found four firearms in his bedroom. On May 18, 2022, a federal
* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 24-4012 Document: 010111058482 Date Filed: 05/31/2024 Page: 2
grand jury indicted Rice on one count of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). Rice entered a guilty plea
purportedly under Federal Rule of Criminal Procedure 11(c)(1)(C). The parties
agreed to a binding sentence of 84 months’ imprisonment despite an advisory
guideline range of 120 months, see U.S.S.G. § 5G1.1(a), as well as jointly
recommending a credit under U.S.S.G. § 5G1.3 for the time Rice had served
between his federal indictment and sentencing.
At the outset of the sentencing hearing in January 2023, the district court
remarked that the 84-month sentence was “quite a step down from the
guidelines” but still deemed it appropriate because Rice would not be “given
credit . . . for the time he’s serving with the state.” R. vol. 2, at 36. When
invited to comment, Rice’s counsel requested that Rice’s federal sentence run
concurrent to his state sentence. The district court then accepted the
Rule 11(c)(1)(C) plea agreement and sentenced Rice to “84 months with an
adjustment, pursuant to USSG Section 5G1.3, for time served since May 18,
2022.” R. vol. 2, at 40. The court also ordered that Rice’s federal sentence run
concurrent to his state sentence for violating parole. Rice did not appeal.
II. Motion to Vacate
In November 2023, Rice filed a petition under 28 U.S.C. § 2255, seeking
to have his conviction and sentence vacated. He argued that his conviction
cannot stand after New York State Rifle & Pistol Association, Inc. v. Bruen,
597 U.S. 1 (2022), which he says renders his conviction unconstitutional as
2 Appellate Case: 24-4012 Document: 010111058482 Date Filed: 05/31/2024 Page: 3
barring convicted felons a right to possess firearms for self-defense. He also
asserted that his attorney provided ineffective assistance by failing to advise
him of Bruen and failing to file a motion to dismiss the indictment under
Bruen. Finally, he contended that his attorney provided ineffective assistance at
sentencing. The government responded, arguing that Rice’s claims failed on the
merits. 1
The court ruled that Rice had procedurally defaulted his Bruen claim by
raising it for the first time in a § 2255 petition. The court also rejected his
ineffective-assistance claims on the merits.
STANDARD OF REVIEW
Rice must obtain a COA before we may address the merits of his appeal,
as it is a jurisdictional prerequisite to our review. See Montez v. McKinna, 208
F.3d 862, 866–67 (10th Cir. 2000). To do so, Rice must show that “jurists of
reason would find it debatable” (1) “whether the petition states a valid claim of
the denial of a constitutional right” and (2) “whether the district court was
correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
1 In the plea agreement, Rice agreed to waive any collateral attack on his conviction and sentence, except for ineffective-assistance-of-counsel claims. 3 Appellate Case: 24-4012 Document: 010111058482 Date Filed: 05/31/2024 Page: 4
DISCUSSION
We first consider Rice’s argument under Bruen and then address his
ineffective-assistance claims. 2
I. Rice procedurally defaulted his claim under Bruen.
Rice concedes that he procedurally defaulted his Bruen claim by failing
to raise it in a direct appeal. To proceed despite this default, he relies on the
actual-innocence exception. But he builds his argument on a misread of Bruen,
597 U.S. 1. Contrary to Rice’s view, that case does not hold that felons may
possess firearms for self-defense. See, e.g., Vincent v. Garland, 80 F.4th 1197,
1202 (10th Cir. 2023) (ruling that Bruen did not abrogate circuit precedent
upholding § 922(g)(1) as constitutional). Thus, reasonable jurists would not
debate the district court’s ruling on Rice’s Bruen claim.
II. Rice’s ineffective-assistance claim based on Bruen fails.
In Rice’s petition, he claims that he would not have pleaded guilty had he
been advised about Bruen. The district court rejected this claim, ruling that it
was “mere[ly] conclusory” so Rice had not shown prejudice. R. vol. 1, at 33.
To prevail on an ineffective-assistance claim, Rice must show that his
counsel’s performance was deficient and that he suffered prejudice. See
Strickland v. Washington, 466 U.S. 668, 687 (1984). “To show prejudice in the
2 Because Rice proceeds pro se, we liberally construe his filings, but we do not act as his advocate. See United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009). 4 Appellate Case: 24-4012 Document: 010111058482 Date Filed: 05/31/2024 Page: 5
guilty plea context, the [prisoner] must establish that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and
insisted on going to trial.” United States v. Reed, 39 F.4th 1285, 1293
(10th Cir. 2022) (cleaned up). Because Bruen does not stand for the proposition
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Appellate Case: 24-4012 Document: 010111058482 Date Filed: 05/31/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 31, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 24-4012 (D.C. Nos. 2:23-CV-00858-DBB & BROK ARLIN RICE, 2:22-CR-00174-DS-1) (D. Utah) Defendant - Appellant. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________
Before PHILLIPS, BRISCOE, and CARSON, Circuit Judges. _________________________________
Brok Arlin Rice, a federal prisoner proceeding pro se, seeks a Certificate
of Appealability (COA) to appeal the district court’s denial of his 28 U.S.C.
§ 2255 petition. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we
deny a COA.
BACKGROUND
I. Conviction and Sentencing
In March 2022, Rice was arrested for violating his state parole after
parole officers found four firearms in his bedroom. On May 18, 2022, a federal
* 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. Appellate Case: 24-4012 Document: 010111058482 Date Filed: 05/31/2024 Page: 2
grand jury indicted Rice on one count of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). Rice entered a guilty plea
purportedly under Federal Rule of Criminal Procedure 11(c)(1)(C). The parties
agreed to a binding sentence of 84 months’ imprisonment despite an advisory
guideline range of 120 months, see U.S.S.G. § 5G1.1(a), as well as jointly
recommending a credit under U.S.S.G. § 5G1.3 for the time Rice had served
between his federal indictment and sentencing.
At the outset of the sentencing hearing in January 2023, the district court
remarked that the 84-month sentence was “quite a step down from the
guidelines” but still deemed it appropriate because Rice would not be “given
credit . . . for the time he’s serving with the state.” R. vol. 2, at 36. When
invited to comment, Rice’s counsel requested that Rice’s federal sentence run
concurrent to his state sentence. The district court then accepted the
Rule 11(c)(1)(C) plea agreement and sentenced Rice to “84 months with an
adjustment, pursuant to USSG Section 5G1.3, for time served since May 18,
2022.” R. vol. 2, at 40. The court also ordered that Rice’s federal sentence run
concurrent to his state sentence for violating parole. Rice did not appeal.
II. Motion to Vacate
In November 2023, Rice filed a petition under 28 U.S.C. § 2255, seeking
to have his conviction and sentence vacated. He argued that his conviction
cannot stand after New York State Rifle & Pistol Association, Inc. v. Bruen,
597 U.S. 1 (2022), which he says renders his conviction unconstitutional as
2 Appellate Case: 24-4012 Document: 010111058482 Date Filed: 05/31/2024 Page: 3
barring convicted felons a right to possess firearms for self-defense. He also
asserted that his attorney provided ineffective assistance by failing to advise
him of Bruen and failing to file a motion to dismiss the indictment under
Bruen. Finally, he contended that his attorney provided ineffective assistance at
sentencing. The government responded, arguing that Rice’s claims failed on the
merits. 1
The court ruled that Rice had procedurally defaulted his Bruen claim by
raising it for the first time in a § 2255 petition. The court also rejected his
ineffective-assistance claims on the merits.
STANDARD OF REVIEW
Rice must obtain a COA before we may address the merits of his appeal,
as it is a jurisdictional prerequisite to our review. See Montez v. McKinna, 208
F.3d 862, 866–67 (10th Cir. 2000). To do so, Rice must show that “jurists of
reason would find it debatable” (1) “whether the petition states a valid claim of
the denial of a constitutional right” and (2) “whether the district court was
correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
1 In the plea agreement, Rice agreed to waive any collateral attack on his conviction and sentence, except for ineffective-assistance-of-counsel claims. 3 Appellate Case: 24-4012 Document: 010111058482 Date Filed: 05/31/2024 Page: 4
DISCUSSION
We first consider Rice’s argument under Bruen and then address his
ineffective-assistance claims. 2
I. Rice procedurally defaulted his claim under Bruen.
Rice concedes that he procedurally defaulted his Bruen claim by failing
to raise it in a direct appeal. To proceed despite this default, he relies on the
actual-innocence exception. But he builds his argument on a misread of Bruen,
597 U.S. 1. Contrary to Rice’s view, that case does not hold that felons may
possess firearms for self-defense. See, e.g., Vincent v. Garland, 80 F.4th 1197,
1202 (10th Cir. 2023) (ruling that Bruen did not abrogate circuit precedent
upholding § 922(g)(1) as constitutional). Thus, reasonable jurists would not
debate the district court’s ruling on Rice’s Bruen claim.
II. Rice’s ineffective-assistance claim based on Bruen fails.
In Rice’s petition, he claims that he would not have pleaded guilty had he
been advised about Bruen. The district court rejected this claim, ruling that it
was “mere[ly] conclusory” so Rice had not shown prejudice. R. vol. 1, at 33.
To prevail on an ineffective-assistance claim, Rice must show that his
counsel’s performance was deficient and that he suffered prejudice. See
Strickland v. Washington, 466 U.S. 668, 687 (1984). “To show prejudice in the
2 Because Rice proceeds pro se, we liberally construe his filings, but we do not act as his advocate. See United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009). 4 Appellate Case: 24-4012 Document: 010111058482 Date Filed: 05/31/2024 Page: 5
guilty plea context, the [prisoner] must establish that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and
insisted on going to trial.” United States v. Reed, 39 F.4th 1285, 1293
(10th Cir. 2022) (cleaned up). Because Bruen does not stand for the proposition
that Rice asserts it for, “it is hard to see” how his awareness of the case would
have changed his “assessment of his strategic position” and caused him to insist
on going to trial. United States v. Dominguez Benitez, 542 U.S. 74, 85 (2004).
Thus, Rice has not shown a reasonable probability that he would not have
pleaded guilty, and reasonable jurists would not debate the district court’s
ruling. 3
III. Rice’s counsel provided effective assistance at sentencing.
In his petition, Rice contends that his counsel provided ineffective
assistance by failing to argue (1) that his federal sentence should run
concurrent to his state sentence and (2) that he should receive a credit under
§ 5G1.3. Rice’s first argument is mistaken because his counsel in fact
successfully argued for a concurrent sentence. Thus, we consider only whether
his counsel provided ineffective assistance by failing to argue for a credit under
§ 5G1.3(b)(1).
3 Rice also claims that his counsel was ineffective by failing to file a motion to dismiss the indictment under Bruen. But Rice’s counsel needn’t file a meritless motion to provide effective assistance. See United States v. Babcock, 40 F.4th 1172, 1177 (10th Cir. 2022). 5 Appellate Case: 24-4012 Document: 010111058482 Date Filed: 05/31/2024 Page: 6
Under § 5G1.3(b)(1), a defendant shall receive a credit for time already
served that will not be credited by the Bureau of Prisons. To qualify, the
defendant must have been serving a prison term for an offense that is relevant
conduct to the instant federal offense—for example, if a defendant has been
serving a state sentence for the same conduct underlying his federal conviction.
See U.S.S.G. § 5G1.3 cmt. n.2(D). The Guidelines commentary provides a
helpful example: if “a sentence of 13 months provides the appropriate total
punishment” and the defendant has served 6 months on a related state charge,
then the court should sentence the defendant to 7 months. See id. In ordering
this credit, the district court “should note on the Judgment . . . that the sentence
imposed is a sentence reduction pursuant to § 5G1.3(b).” Id. § 5G1.3 cmt.
n.2(C).
To consider whether Rice’s counsel provided ineffective assistance, we
evaluate counsel’s performance from her “perspective at the time,” indulging “a
strong presumption that [it] falls within the wide range of reasonable
professional assistance.” Strickland, 466 U.S. at 689. Here, before being given
an opportunity to argue for the state-time-served credit, defense counsel heard
the district court say that the 84-month sentence was “quite a step down from
the guidelines” but nonetheless appropriate because Rice would “not [be] given
credit . . . for the time he’s serving with the state.” R. vol. 2, at 36 (emphasis
added). Given this, Rice’s counsel reasonably understood that the district court
was exercising its discretion under the plea agreement either to reject a § 5G1.3
6 Appellate Case: 24-4012 Document: 010111058482 Date Filed: 05/31/2024 Page: 7
credit or to subsume it into the 84-month sentence. Thus, reasonable jurists
would not debate the district court’s conclusion that Rice received the effective
assistance of counsel. See Babcock, 40 F.4th at 1177.
CONCLUSION
For these reasons, we deny Rice a COA and dismiss this matter.
Entered for the Court
Gregory A. Phillips Circuit Judge