                                                                                    FILED
                                                                        United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                             Tenth Circuit

                                     TENTH CIRCUIT                           January 10, 2013

                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
v.                                                           No. 12-2134
                                                 (D.C. Nos. 1:12-CV-00480-JEC-WPL;
HECTOR HERNANDEZ-CORNEJO,                               2:10-CR-03131-JEC-1
                                                               (D. N.M.)
             Defendant - Appellant.




                             ORDER AND JUDGMENT*


Before LUCERO, O'BRIEN, and MATHESON, Circuit Judges.

      Hector Hernandez-Cornejo seeks to appeal from the district court’s denial of his

motion for post-conviction relief under 28 U.S.C. § 2255. The motion argued he had

received ineffective assistance of counsel because his attorney had not sought a

“reduction from the guidelines range based on [the] fast-track early disposition program




      *
        The parties have waived oral argument. See Fed. R. App. P. 34(f); 10th Cir. R.
34.1(G). This case is submitted for decision on the briefs.
        This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
for illegal aliens.” (R. Vol. I at 7.) He seeks a sentence reduction to conform the term of

his incarceration to the terms of persons sentenced under the fast-track program.

       Two convictions led to Hernandez-Cornejo’s incarceration. On the more recent

conviction, he pled guilty to illegal re-entry after removal and was sentenced to

imprisonment for 41 months. Because this offense also violated the terms of his

probation for a prior illegal reentry conviction, the court revoked his probation and

resentenced him to a prison term of 18 months to run consecutively with the 41-month

term.1 See 18 U.S.C. § 3565(a)(2) (allowing the sentencing court to revoke probation and

resentence a defendant who violates the conditions of probation). We affirmed these

sentences on direct appeal. United States v. Hernandez-Cornejo, 447 F. App’x 909, 910

(10th Cir. 2012) (concluding the sentences were substantively reasonable).

       Hernandez-Cornejo then filed the § 2255 motion now at issue. The district court

dismissed the motion. As the court explained, his sentences already accounted for any

fast-track disparities. On his more recent conviction, his sentence “included a downward

departure [for] the District’s early disposition program.” (R. Vol. I at 30.) While the

ordinary offense level for illegal re-entry after removal is 17, he reached a bargain with

prosecutors to be sentenced under the milder offense level of 16. At sentencing, the

district court accepted the bargain “as . . . the agreed offense level departs for justifiable


       1
          The District of Utah, where Hernandez-Cornejo was originally prosecuted,
transferred jurisdiction over the probation revocation case to the District of New Mexico.
Hernandez-Cornejo, 447 F. App’x at 910. This enabled the district court to address his
resentencing on the earlier conviction and sentence him for the more recent conviction at
a single hearing. Id.


                                             -2-
reasons, which include the adoption by the Attorney General and the United States

Attorney for this district of the early disposition program.” (Sentencing Tr., 2:10-CR-

03338-JEC, Doc. 21, at 3.) This downward departure resulted in a 5-6 month reduction

in his term of imprisonment.

       Moreover, in his earlier illegal re-entry case, Hernandez-Cornejo actually

participated in the fast-track program. Thus, the district court found he had “received the

benefit of fast-track programs in both of his criminal prosecutions” and concluded “his

claim that his attorney provided ineffective assistance by failing to request a fast-track

departure present[ed] no grounds for relief.” (R. Vol. I at 30.) It also denied him a

Certificate of Appealability (COA). Without explaining why he believes the court erred

in denying his motion, he reapplies for a COA here.

       A COA is a jurisdictional prerequisite to our review of a motion for relief under

§ 2255. 28 U.S.C. § 2253(a), (c)(2); United States v. Gonzales, 596 F.3d 1228, 1241

(10th Cir. 2010). We 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 means the applicant

must present a reasonably debatable issue “deserv[ing] encouragement to proceed

further.” Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (citation and quotation marks

omitted). We undertake a preliminary legal analysis of the COA applicant’s claims to

identify such issues. See Miller–El v. Cockrell, 537 U.S. 322, 338 (2003).

       Here, our preliminary analysis shows the district court was correct—Hernandez-

Cornejo’s sentences already reflect the reductions he seeks. On his first conviction, he

actually participated in the fast-track program. On the second, he received a five to six

                                            -3-
month reduction to place him in parity with fast-track program participants. Thus, his

sentences already conform to those of fast-track program participants, and he has no

cause to complain of his trial counsel’s performance at sentencing. See Strickland v.

Washington, 466 U.S. 668, 687 (1984) (holding ineffective assistance of counsel is

remediable only on a showing of deficient representation and prejudice).

      We DENY Hernandez-Cornejo’s application for a COA and DISMISS this matter.

                                         Entered by the Court:

                                         Terrence L. O’Brien
                                         United States Circuit Judge




                                           -4-
