                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                   May 23, 2012
                                 TENTH CIRCUIT
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 12-3041
                                            (D.C. Nos. 6:11-CV-01352-MLB and
 v.
                                                  6:10-CR-10104-MLB-1)
                                                          (D. Kan.)
 JESUS MALDONADO-ORTEGA,

          Defendant-Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.


      Jesus Maldonado-Ortega pleaded guilty to federal drug and firearm charges

and, as part of the plea agreement, waived his right to appeal and to collaterally

attack his conviction and sentence. Even so, he filed a federal habeas petition

under 28 U.S.C. § 2255, arguing that his sentence was too high and that the trial

court lacked jurisdiction over his case. The district court dismissed Mr.

Maldonado-Ortega’s petition on the grounds that his challenge to his sentence

was barred by the waiver and that his jurisdictional challenge was meritless.



      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Renewing his challenge in this court, Mr. Maldonado-Ortega asks us for a

certificate of appealability (“COA”) so that he may appeal the district court’s

dismissal of his petition.

      We may grant a COA only if Mr. Maldonado-Ortega makes a “substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Under

this standard, an applicant must show “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 omitted). Because Mr. Maldonado-Ortega proceeds in this

court pro se, we review his pleadings with special solicitude.

      Even under this forgiving standard, we cannot grant a COA. First, as the

district court held, Mr. Maldonado-Ortega’s challenges to his sentence are barred

by his plea agreement. Mr. Maldonado-Ortega does not dispute that the plea

agreement’s waiver of appellate and habeas rights encompasses the challenges he

now presents to his sentence, nor does he contend the waiver was not knowing

and voluntary. His lawyer adequately informed him of the range of sentences he

could face, the trial judge explained in clear terms the meaning of the waiver

provision, and Mr. Maldonado-Ortega said he understood and agreed to these

terms. Under such circumstances, we must enforce the waiver. See United States

v. Cockerham, 237 F.3d 1179, 1188 (10th Cir. 2001).

                                        -2-
      Mr. Maldonado-Ortega’s jurisdictional challenge fares no better. He says

that his drug crime was a quintessentially local offense that under the Tenth

Amendment may not be brought in federal court. But we have repeatedly upheld

21 U.S.C. § 841 against Commerce Clause and Tenth Amendment challenge. See,

e.g., United States v. Wacker, 72 F.3d 1453, 1475 (10th Cir. 1995). Nor does it

matter, as Mr. Maldonado-Ortega suggests, that local law enforcement got to him

first. Under our system of dual sovereignty, the possibility of criminal charges

under state law does not affect the federal government’s ability to punish that

same conduct for contravention of federal law. Abbate v. United States, 359 U.S.

187, 192-94 (1959).

      The request for a COA is denied and the appeal is dismissed.



                                       ENTERED FOR THE COURT



                                       Neil M. Gorsuch
                                       Circuit Judge




                                        -3-
