United States v. De Leon-Fernandez ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 25, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 05-2355
v. (D. of N.M .)
ED D IE G IO V A N NI D E LEO N - (D.C. No. CIV-05-982-JP and
FERNA ND EZ, CR -04-1180-JP)
Defendant-Appellant.
OR DER DENY ING CERTIFICATE O F APPEALABILITY *
Before TA CH A, Chief Judge, HA RTZ, and TYM KOVICH, Circuit Judges. **
Eddie G iovanni De Leon-Fernandez, a federal prisoner, seeks a Certificate
of Appealability (COA) to appeal the denial of his M otion To Vacate Or Reduce
Sentence pursuant to 28 U .S.C. § 2255. Since he appears pro se, we construe D e
Leon-Fernandez’s pleadings liberally. See Cum mings v. Evans, 161 F.3d 610, 613
*
This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
(10th Cir. 1998). W e agree with the district court that a COA should not issue
because De Leon-Fernandez has not made a substantial showing of the denial of a
constitutional right. Accordingly, we DENY the COA and DISM ISS his appeal.
I. Background
In 1996, De Leon-Fernandez was convicted of dealing in heroin, an
aggravated felony. He was deported from the United States to Guatemala in
A ugust of 2001. A fter he returned illegally to the United States, De
Leon-Fernandez was charged with re-entry of a deported alien previously
convicted of an aggravated felony in violation of 8 U.S.C. §§ 1326(a)(1)-(2) and
(b)(2). W ith assistance of trial counsel, he pleaded guilty to this charge and was
sentenced to 46 months of confinement followed by two years of supervised
release.
De Leon-Fernandez, appearing pro se, filed a M otion To Vacate Or Reduce
Sentence pursuant to 28 U.S.C. § 2255 in United States District Court for the
District of New M exico. In the motion, De Leon-Fernandez claimed that his
constitutional rights had been violated by the ineffective assistance of his counsel.
Specifically, De Leon-Fernandez asserted that his law yer should have argued for a
lower sentence under Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v.
Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220(2005). The district court denied De Leon-Fernandez's petition based on the fact
that no showing was made that his sentencing would have been different if his
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attorney had made the arguments raised in his § 2255 motion. The district court
also denied his request for a COA. De Leon-Fernandez raises the same issues on
appeal to this court.
II. Analysis
A circuit court may issue a certificate of appealability “only if the applicant
has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). W here a district court “has rejected the constitutional claims on the
merits,” an applicant meets this standard by “demonstrat[ing] that reasonable
jurists would find the district court's assessment of the constitutional claims
debatable or wrong.” M iller-El v. Cockrell, 537 U.S. 322, 338 (2003) (quoting
Slack v. M cDaniel, 529 U .S. 473, 484 (2000)). In conducting our analysis, we
need only engage in “an overview of the claims in the . . . petition and a general
assessment of their merits” rather than “full consideration of the factual or legal
bases adduced in support of the claims.” M iller-El, 537 U.S. at 336.
R easonable jurists w ould not find the district court's ruling on De
Leon-Fernandez's constitutional claims disputable or incorrect. The district court
ruled that Apprendi and Blakely could not affect De Leon-Fernandez’s sentence
because they apply to state rather than federal sentences. See Blakely, 542 U.S. at
305. The district court also held that Booker could not change De Leon-
Fernandez’s sentence because its holding was retroactive only to cases on direct
review. See Booker, 543 U.S. at 266. And we have held that Booker is not
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retroactive in cases on collateral review. United States v. Bellamy, 411 F.3d
1182, 1188 (10th Cir. 2005). Reasonable jurists therefore would not debate
whether the district court's analysis was “contrary to . . . clearly established
Federal law.” See 28 U.S.C. § 2254(d)(1); Strickland v. Washington, 466 U.S.
668, 697 (1984). A ccordingly, we adopt the district court’s reasoning.
III. Conclusion
For these reasons, De Leon-Fernandez has failed to make a sufficient
show ing that he is entitled to a COA. Accordingly, we DENY De
Leon-Fernandez's application for a COA and DISM ISS this appeal.
Entered for the Court
Timothy M . Tymkovich
Circuit Judge
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