                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   June 23, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT


 DAGOBERTO AGUILAR-RAMOS,

       Petitioner - Appellant,
                                                        No. 11-1136
 v.                                           (D.C. No. 1:10-CV-00505-CMA)
                                                         (D. Colo.)
 ANGEL MEDINA, Warden; THE
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

       Respondents - Appellees.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      Dagoberto Aguilar-Ramos, a state inmate appearing pro se, seeks a

certificate of appealability (“COA”) allowing him to appeal the district court’s

denial of his application for a writ of habeas corpus. See 28 U.S.C. §§ 2253,

2254. For this court to issue a COA on a habeas claim denied on the merits, Mr.

Aguilar-Ramos must make a “substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). To make this showing he must demonstrate that

“reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

       Mr. Aguilar-Ramos was convicted in Colorado state court of second degree
kidnapping following a jury trial. The jury acquitted him on a charge of sexual

assault; however the jury found by special interrogatory that the victim had been

sexually assaulted during the kidnapping. This finding elevated the felony

classification of the kidnapping conviction from class four to class two. The trial

court sentenced Mr. Aguilar-Ramos to a term of twenty-four years, within the

presumptive range for class-two felonies. See Colo. Rev. Stat.

§ 18-1.3-401(1)(a)(V)(A). His conviction was affirmed on direct appeal. People

v. Aguilar-Ramos, No. 06CA0183 (Colo. App. Oct. 4, 2007) (unpublished). He

then filed a Rule 35(c) motion, Colo. R. Crim. P., which was denied by the trial

court and affirmed by the court of appeals. See People v. Aguilar-Ramos, 224

P.3d 402 (Colo. App. 2009).

      Mr. Aguilar-Ramos asserts that the trial court’s sentence was above the

presumptive range for conduct for which he was acquitted and violated his Sixth

Amendment right to trial under Apprendi v. New Jersey, 530 U.S. 466 (2000), and

the Double Jeopardy Clause. Under Colorado law, however, the felony

classification of a second degree kidnapping conviction is elevated from class

four to class two if the person kidnapped “is a victim of a sexual offense,”

without regard to whether the kidnapper was also the perpetrator of the sexual

assault. Colo. Rev. Stat. §§ 18-3-302(3)(a), 18-3-302(5); see Aguilar-Ramos, 224

P.3d at 404. Of course, a federal court is bound by the state court’s interpretation

of the second-degree kidnapping statute. See Missouri v. Hunter, 459 U.S. 359,

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368-69 (1983). Applying the deference to the state court as required by 28 U.S.C.

§ 2254(d), the district court’s conclusion that Mr. Aguilar-Ramos was punished

only for the crime for which he was convicted was not reasonably debatable. Nor

was its conclusion that because Mr. Aguilar-Ramos’s sentence was within the

presumptive range, Apprendi was inapplicable. See Apprendi, 530 U.S. at 474.

The district court properly deferred to the state court’s resolution of these issues.

See Aguilar-Ramos v. Medina, 2011 WL 883055, at *6 (D. Colo. Mar. 14, 2011).

      Accordingly, we DENY Mr. Aguilar-Ramos’s request for a COA, DENY

IFP status, and DISMISS the appeal. Mr. Aguilar-Ramos shall pay any

outstanding balance of the appellate filing fee.


                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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