                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit

                                                                            October 18, 2006
                        UNITED STATES COURT OF APPEALS
                                                                          Elisabeth A. Shumaker
                                         TENTH CIRCUIT                        Clerk of Court



 UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

           v.                                                 No. 06-2073
                                                   (D. Ct. No. CIV-05-0576 RB/DJS)
 RICARDO MEXICANO-AGUILAR,                                   (D. N. Mex. )

                 Defendant - Appellant.


                                                                               *
                ORDER DENYING CERTIFICATE OF APPEALABILITY


Before TACHA, Chief Circuit Judge, HARTZ, and TYMKOVICH, Circuit Judges.


       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)(2); 10th Cir. R. 34.1(G). The

case is therefore ordered submitted without oral argument.

       Defendant-Appellant Ricardo Mexicano-Aguilar, a federal prisoner proceeding pro

se, seeks a certificate of appealability (“COA”) to appeal from the District Court’s denial

of his habeas corpus petition brought under 28 U.S.C. § 2255. See 28 U.S.C.


       *
        This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. This 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.
§ 2253(c)(1) (a petitioner may not appeal the denial of habeas relief under § 2255 unless a

COA is issued). We will issue a COA “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 the petitioner to demonstrate “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. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted).

       In 2004, Mr. Mexicano-Aguilar was convicted under 8 U.S.C. § 1326(a) and (b) of

reentry into the United States following deportation subsequent to a conviction for an

aggravated felony. He was sentenced to 57 months’ imprisonment based, in part, on a 16-

level enhancement under United States Sentencing Guidelines Manual (“U.S.S.G.” or

“Guidelines”) § 2L1.2(b)(1)(A) for a prior crime of violence. A panel of this Court

affirmed his conviction on direct appeal. See United States v. Mexicano-Aguilar, 114

Fed. App’x 365 (10th Cir. 2004) (unpublished).

       Mr. Mexicano-Aguilar then filed his § 2255 petition in the District Court, arguing

that he received ineffective assistance of counsel during the sentencing phase.

Specifically, he contends that his counsel was ineffective for failing to argue that his prior

state court conviction for second-degree robbery, which resulted only in a probated

sentence, is not a “crime of violence” within the meaning of U.S.S.G.

§ 2L1.2(b)(1)(A)(ii).

       In order to prevail on an ineffective assistance of counsel claim, a habeas petitioner

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must show that his counsel’s conduct “fell below an objective standard of

reasonableness” and that such deficient performance resulted in prejudice to the

defense—that is, “there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Strickland v. Washington,

466 U.S. 668, 687–88, 694 (1984). Mr. Mexicano-Aguilar cannot meet this standard.

       A “crime of violence” explicitly includes “robbery.” See U.S.S.G. § 2L1.2 cmt.

n.1(B)(iii). Mr. Mexicano-Aguilar argues, however, that because his robbery conviction

resulted only in probation, it cannot be considered a crime of violence. To the contrary,

“U.S.S.G. § 2L1.2(b)(1)(A)(ii) does not require that, to be a ‘crime of violence,’ a prior

conviction result in a sentence of any particular length.” United States v.

Gonzalez-Coronado, 419 F.3d 1090, 1095 (10th Cir. 2005) (holding that an enhancement

under § 2L1.2(b)(1)(A)(ii) is appropriate even when sentence for prior crime was

probation). Because the 16-level enhancement was appropriately applied, counsel’s

failure to raise the issue at sentencing (or on appeal) did not prejudice Mr. Mexicano-

Aguilar.

       Mr. Mexicano-Aguilar also argues that the District Court erred in refusing to

permit him to prove the merits of his claim by showing that his counsel failed to discover

that his prior state court conviction resulted only in probation. As noted, however, even

had counsel known and argued this point, there is not a reasonable probability that the

outcome of the proceedings would have been different. Accordingly, we DENY Mr.




                                            -3-
Mexicano-Aguilar’s request for a COA and DISMISS the appeal.



                                      ENTERED FOR THE COURT,



                                      Deanell Reece Tacha
                                      Chief Circuit Judge




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