United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-3314
                                   ___________

Jeffrey B. Austin,                      *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Missouri.
United States of America,               * [UNPUBLISHED]
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: December 7, 2007
                                Filed: December 13, 2007
                                 ___________

Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
                        ___________

PER CURIAM.

       Jeffrey Austin is serving a federal sentence of 108 months in prison imposed
after he was convicted of being a felon and unlawful user of controlled substances in
possession of firearms, in violation of 18 U.S.C. §§ 922(g)(1), (3) and 924(a)(2).
After affirmance on direct appeal, see United States v. Austin, 98 Fed. Appx. 573 (8th
Cir. 2004) (unpublished per curiam), Austin filed the instant proceeding under 28
U.S.C. § 2255, claiming that his waiver during his sentencing hearing of a fact issue
underlying a Guidelines offense-level calculation was not voluntary, and that his
counsel was relatedly ineffective for relieving the government of its burden of proof
in exchange for a recommendation of a sentence at the low end of the Guidelines
range. The district court1 denied relief, but granted a certificate of appealability
(COA) on these issues. Following careful review, we agree with the district court that
the record does not support Austin’s contention that his waiver was involuntary--
although it is questionable whether voluntariness is relevant, see New York v. Hill,

, 114-15 (2000) (for certain fundamental rights, defendant must
personally make informed waiver, but waiver may be effected by action of counsel as
to trial decisions, such as what evidentiary objections to raise, and defendant is
deemed bound by acts of counsel). We also agree that Austin failed to establish
prejudice or deficient performance by his counsel. See Rodriguez v. United States,

, 226 (8th Cir. 1994) (per curiam) (counsel not ineffective for failing to
raise meritless challenge).

     Accordingly, we affirm. See 8th Cir. R. 47B. Austin’s motion to expand the
COA is denied.
                    ______________________________




      1
        The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.

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