                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                      December 15, 2005
                                TENTH CIRCUIT
                                                                         Clerk of Court

UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
                                                       No. 05-4105
v.                                                   (District of Utah)
                                              (D.C. Nos. 2:02-CV-76-DB and
ROCENDO ROMERO-BORRAYO,                              2:01-CR-56-DB)

       Defendant-Appellant.




                                     ORDER


Before BRISCOE, LUCERO and MURPHY, Circuit Judges.


      Petitioner, Rocendo Romero Borrayo, seeks a certificate of appealability

(“COA”) so he can appeal the district court’s denial of the motion to vacate, set

aside, or correct sentence he brought pursuant to 28 U.S.C. § 2255. See 28 U.S.C.

§ 2253(c)(1)(B) (providing that a movant may not appeal the denial of a § 2255

motion unless the movant first obtains a COA). Because Borrayo has not made a

substantial showing of the denial of a constitutional right, we deny his request and

dismiss this appeal.

      In 1999, Borrayo was convicted in Utah state court of forgery. He received

an indeterminate sentence of zero to five years but was deported to Mexico after
serving only nine months in jail. In 2001, Borrayo pleaded guilty to illegally

reentering the United States in violation of 8 U.S.C. § 1326(a). The district court

concluded that Borrayo’s 1999 state conviction was an aggravated felony and

enhanced his sentence pursuant to 8 U.S.C. § 1326(b). Borrayo was sentenced to

a term of seventy-seven months’ imprisonment and three years’ supervised

release. Borrayo did not bring a direct appeal but filed the instant § 2255 motion

on January 29, 2002 seeking to set aside his § 1326(a) conviction.

      In his § 2255 motion, Borrayo argues that his § 1326(a) conviction for

illegal reentry is improper because his initial deportation was unlawful.

Specifically, Borrayo asserts that he was denied an effective opportunity to appeal

the removal order because his waiver of his appellate rights was not knowing and

voluntary. He contends that he was not informed of the availability of

discretionary relief from deportation when he signed the waiver. Borrayo also

argues that his 1999 state conviction is not an aggravated felony within the

meaning of 8 U.S.C. § 1101(3)(43) and that his attorney provided constitutionally

ineffective assistance by failing to challenge the characterization of his state

conviction as an aggravated felony. Borrayo also argues that his sentence violates

United States v. Booker, 125 S. Ct. 738 (2005).

      The district court rejected Borrayo’s argument that his state conviction is

not an aggravated felony. Relying on 8 U.S.C. § 1101(a)(43)(R), the court


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concluded the term “aggravated felony” includes Borrayo’s 1999 state conviction

because it was “an offense relating to commercial . . . forgery . . . for which the

term of imprisonment is at least one year.” The court determined that the length

of Borrayo’s indeterminate state sentence was measured by the maximum possible

term of imprisonment. See United States v. Reyes-Castro, 13 F.3d 377, 379-80

(1995). The district court’s rejection of Borrayo’s state conviction claim also

resolved the ineffective assistance claim. The court then concluded Borrayo

failed to demonstrate that the waiver of his right to appeal his removal was not

knowing and voluntary. In the alternative, the court determined that Borrayo was

not eligible for discretionary relief and, thus, he could not demonstrate he was

prejudiced by his failure to appeal. See 8 U.S.C. § 1228(b)(5) (“No alien

described in this section shall be eligible for any relief from removal that the

Attorney General may grant in the Attorney General’s discretion.”). Finally, the

court rejected Borrayo’s Booker argument on the merits. In his application for

COA and appellate brief, Borrayo abandons his ineffective assistance and Booker

arguments. He does, however, challenge the district court’s conclusions that his

state conviction is an aggravated felony and that he was not prejudiced by his

failure to appeal his removal order.

      To be entitled to a COA, Borrayo must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite


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showing, he must 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.” Miller-El v. Cockrell, 322 U.S. 322, 336 (2003) (quotations

omitted). In evaluating whether Borrayo has satisfied his burden, this court

undertakes “a preliminary, though not definitive, consideration of the [legal]

framework” applicable to each of his claims. Id. at 338. Although Borrayo need

not demonstrate his appeal will succeed to be entitled to a COA, he must “prove

something more than the absence of frivolity or the existence of mere good faith.”

Id.

      Having undertaken a review of Borrayo’s application for a COA and

appellate filings, the district court’s order, and the entire record on appeal

pursuant to the framework set out by the Supreme Court in Miller-El, this court

concludes that Borrayo is not entitled to a COA. The district court’s resolution of

Borrayo’s § 2255 motion is not reasonably subject to debate and the issues he

seeks to raise on appeal are not adequate to deserve further proceedings.

Accordingly, this court denies Borrayo’s request for a COA and dismisses this

appeal.

                                        Entered for the Court
                                        CLERK, COURT OF APPEALS



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By
       Deputy Clerk




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