                                                                           F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                       February 16, 2006
                                TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                           Clerk of Court

 UNITED STATES OF AMERICA,
              Plaintiff - Appellee,                     No. 05-3208
 v.                                          (D.C. Nos. 05-CV-3065-WEB and
                                                    04-CR-10007-WEB)
 JORGE CASTILLO-OLIVAS,                                   (D. Kan.)
              Defendant - Appellant.


                                       ORDER


Before HENRY, McKAY, and EBEL, Circuit Judges.



      This is an appeal under 28 U.S.C. § 2255. Mr. Castillo-Olivas pleaded

guilty to violating 8 U.S.C. § 1326(a) and (b)–re-entry after deportation following

conviction for an aggravated felony. The sentencing court calculated his

sentencing range to be forty-one to fifty-one months’ imprisonment and on

July 28, 2004, sentenced Mr. Castillo-Olivas to forty-one months’ imprisonment.

One condition of Mr. Castillo-Olivas’ plea agreement waived his “right to

challenge a sentence or manner in which it was determined in any collateral

attack, including, but not limited to, a motion brought under [28 U.S.C.

§ 2255] . . . .” Memorandum and Order, 2 (D. Kan. Mar. 10, 2005). Despite this

explicit waiver, Mr. Castillo-Olivas filed a § 2255 petition and argued that the
waiver should not apply because it was not knowing and voluntary and because he

suffered from ineffective assistance of counsel.

      The district court, however, found that the sentencing court conducted a

colloquy with Mr. Castillo-Olivas sufficient to overcome any concerns regarding

the knowing and voluntary nature of the plea. And as to the ineffective assistance

of counsel claim, Mr. Castillo-Olivas specifically alleges that his counsel failed to

anticipate and inform him that the Supreme Court was considering Blakely v.

Washington, 542 U.S. 296 (2004), which was decided three months after Mr.

Castillo-Olivas was sentenced. While ineffective assistance of counsel claims in

connection to entering a plea agreement are not waived by the plea agreement, we

agree with the trial court that the failure to anticipate Blakely and then United

States v. Booker, 543 U.S. 220 (2005), does not constitute ineffective assistance

of counsel. See, e.g., United States v. Gonzalez-Lerma, 71 F.3d 1537, 1542 (10th

Cir. 1995) (“Counsel’s assistance is not ineffective simply because counsel fails

to base its decisions on laws that might be passed in the future.”). The district

court then denied Mr. Castillo-Olivas a certificate of appealability.

      To qualify for a certificate of appealability, Mr. Castillo-Olivas must make

a “substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2) (1994). To meet this burden, he must demonstrate “that reasonable

jurists could debate whether (or, for that matter, agree that) the petition should


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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) (quotation omitted).

      We have carefully reviewed Mr. Castillo-Olivas’ brief, the district court’s

disposition, and the record on appeal. Nothing in the facts, the record on appeal,

or Petitioner’s filing raises an issue which meets our standard for the grant of a

certificate of appealability. For substantially the same reasons set forth by the

district court in its March 10, 2005 Memorandum and Order, we cannot say “that

reasonable jurists could debate whether (or, for that matter, agree that) the

petition should have been resolved in a different manner.” Id.

      We DENY Mr. Castillo-Olivas’ request for a certificate of appealability

and DISMISS the appeal.

                                               Entered for the Court



                                               Monroe G. McKay
                                               Circuit Judge




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