United States v. Chacon ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
December 19, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff ! Appellee,
No. 11-2137
v. (D.C. Nos. 1:10-CV-00439-RB-DJS &
2:08-CR-00792-RB-1)
CESAR CHACON, (D. N.M.)
Defendant ! Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before BRISCOE, Chief Judge, LUCERO and TYMKOVICH, Circuit Judges.
Cesar Chacon, a federal prisoner proceeding pro se, seeks a certificate of
appealability (COA) to appeal the district court’s decision to construe his
Fed. R. Civ. P. 60(b) motion as an unauthorized second or successive 28 U.S.C.
§ 2255 motion and to dismiss it for lack of jurisdiction. We DENY a COA and
DISMISS this proceeding.
In May 2008, Mr. Chacon pleaded guilty, without a plea agreement, to one
count of conspiracy to possess with intent to distribute more than fifty kilograms
*
This order is not binding precedent except under the doctrines of law of the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.
of marijuana in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 846 and one
count of possession with intent to distribute less than fifty kilograms of marijuana
in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D) and 18 U.S.C. § 2. He was
sentenced to 151 and 60 months of imprisonment, respectively, with the sentences
to run concurrently. This court dismissed his direct appeal as lacking a
meritorious appellate issue. United States v. Chacon, 343 F. App’x 306, 308
(10th Cir. 2009).
Subsequently, Mr. Chacon filed a § 2255 motion, asserting that his counsel
provided ineffective assistance by (1) failing to challenge the conspiracy charge;
(2) failing to recommend sentencing leniency; (3) failing to pursue a two-point
reduction pursuant to sentencing guideline § 3B1.2(b) for minor participation;
(4) failing to show Mr. Chacon his presentence report; and (5) failing to challenge
his career offender status. The magistrate judge recommended that relief be
denied after determining that counsel was not ineffective because (1) Mr. Chacon
admitted he participated in a conspiracy and substantial evidence in the record
established a conspiracy; (2) counsel argued for leniency in sentencing and all but
one of his requests were granted; (3) Mr. Chacon was ineligible for a two-point
reduction for being a minor participant because he was designated a career
offender under sentencing guideline § 4B1.1; (4) counsel reviewed the
presentence report with Mr. Chacon; and (5) Mr. Chacon qualified as a career
offender. Mr. Chacon objected to the recommendation with respect to claims (1),
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(4), and (5). The district court adopted the magistrate judge’s recommended
disposition and denied § 2255 relief.
Subsequently, Mr. Chacon filed a Fed. R. Civ. P. 60(b) motion re-asserting
claim (4) concerning his role as a minor participant. Specifically, he contended
that his attorney should have argued under United States v. Booker, 543 U.S. 220(2005), that career offender status was only advisory and he was eligible for the
minor role adjustment. The district court dismissed the Rule 60(b) motion for
lack of jurisdiction, determining that it was an unauthorized second or successive
§ 2255 motion since it reasserted a federal basis for relief from the underlying
conviction. Mr. Chacon appealed from the denial of Rule 60(b) relief.
He seeks a COA from this court on the claim asserted in the Rule 60(b)
motion. A COA is a jurisdictional prerequisite to this court’s review of the
district court’s denial of Rule 60(b) relief. See Miller-El v. Cockrell, 537 U.S.
322, 335-36 (2003). Because the district court denied the Rule 60(b) motion on
procedural grounds, this court will grant a COA only if Mr. Chacon “shows, at
least, that jurists of reason would find it debatable whether the [motion] states a
valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
A Rule 60(b) motion should be treated as a second or successive § 2255
motion subject to the authorization requirements of § 2255(h) if the motion
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asserts or reasserts claims of error in the prisoner’s conviction. See Gonzalez v.
Crosby, 545 U.S. 524, 531-32 (2005); In re Lindsey, 582 F.3d 1173, 1174-75
(10th Cir. 2009) (per curiam); United States v. Nelson, 465 F.3d 1145, 1147-49
(10th Cir. 2006). Mr. Chacon concedes he is reasserting a claim he asserted in his
§ 2255 motion, which was decided against him. The Rule 60(b) motion therefore
is a second or successive § 2255 motion. The district court correctly held that
authorization was required under § 2255 and without such authorization it had no
jurisdiction to consider the motion. Thus, we conclude that the district court
appropriately dismissed the Rule 60(b) motion. See In re Cline, 531 F.3d 1249,
1251 (10th Cir. 2008) (per curiam).
We therefore DENY a COA, and DISMISS this proceeding. Also, we
DENY Mr. Chacon’s Motion for Leave to Proceed on Appeal Without
Prepayment of Costs or Fees.
Entered for the Court,
ELISABETH A. SHUMAKER, Clerk
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