United States v. Cromwell ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 19, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 06-8015
v. D. W yoming
JOSEPH ED W AR D C RO M W ELL, (D.C. Nos. 05-CV-242-CAB
and 01-CR-136-CAB)
Defendant - Appellant.
OR DER DENY ING CERTIFICATE O F APPEALABILITY *
Before TA CH A, HA RTZ, and TYM KOVICH, Circuit Judges.
Joseph Edward Cromwell pleaded guilty in the United States D istrict Court
for the District of W yoming to two counts of possession of methamphetamine
with intent to distribute. See 21 U.S.C. §§ 841(a)(1), (b)(1)(C). On M arch 19,
2002, he was sentenced to two concurrent terms of 200 months’ imprisonment.
The United States moved for a downward departure under United States
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Sentencing Guidelines § 5K1.1 and Fed. R. Crim. P. 35(b) because M r. Cromwell
had provided substantial assistance to the government. On January 30, 2003, the
district court granted the motion, reducing M r. Cromwell’s sentence to two
concurrent terms of 135 months’ imprisonment. M r. Cromwell did not appeal the
sentence.
M r. Cromwell filed a motion under 28 U.S.C. § 2255 on September 15,
2005, asserting that (1) his sentence violated United States v. Booker, 543 U.S.
220 (2005), (2) the district court erred in not holding a hearing on the
government’s § 5K1.1 motion, and (3) a two-level sentence enhancement had
prevented him from receiving drug rehabilitation during his incarceration. The
district court denied the motion. M r. Cromwell filed a notice of appeal but did
not request a certificate of appealability (COA), see 28 U.S.C. § 2253(c)(1)
(requiring C OA ). We construe his notice of appeal as an application for a COA,
which we deny. W e also deny his motion to supplement the record.
A COA will issue “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard
requires “a demonstration that . . . includes showing that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473,
484 (2000) (internal quotation marks omitted). In other words, the applicant must
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show that the district court’s resolution of the constitutional claim was either
“debatable or wrong.” Id.M r. Cromwell challenges the district court’s denial of his § 2255 motion
solely on the ground that his sentence violated Booker. He admits that under
Tenth Circuit precedent Booker does not apply retroactively to criminal cases
already final when it was decided, but argues that this court is wrong. W e are not
persuaded. No reasonable jurist could conclude that M r. Cromwell’s § 2255
motion should have been decided differently. See United States v. Bellamy, 411
F.3d 1182, 1186-87 (10th Cir. 2005) (“W e . . . join all other circuits that have
examined the question and conclude Booker does not apply retroactively to initial
habeas petitions.”)
W e DENY a COA and DISM ISS the appeal.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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