                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      July 19, 2006
                                   TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                      Clerk of Court


 U N ITED STA TES O F A M ER ICA,

                 Plaintiff - Appellee,                  No. 06-8015
          v.                                            D. W yoming
 JOSEPH ED W AR D C RO M W ELL,                 (D.C. Nos. 05-CV-242-CAB
                                                   and 01-CR-136-CAB)
                 Defendant - Appellant.




               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before TA CH A, HA RTZ, and TYM KOVICH, Circuit Judges.


      Joseph Edward Cromwell pleaded guilty in the United States D istrict Court

for the District of W yoming to two counts of possession of methamphetamine

with intent to distribute. See 21 U.S.C. §§ 841(a)(1), (b)(1)(C). On M arch 19,

2002, he was sentenced to two concurrent terms of 200 months’ imprisonment.

The United States moved for a downward departure under United States

      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Sentencing Guidelines § 5K1.1 and Fed. R. Crim. P. 35(b) because M r. Cromwell

had provided substantial assistance to the government. On January 30, 2003, the

district court granted the motion, reducing M r. Cromwell’s sentence to two

concurrent terms of 135 months’ imprisonment. M r. Cromwell did not appeal the

sentence.

      M r. Cromwell filed a motion under 28 U.S.C. § 2255 on September 15,

2005, asserting that (1) his sentence violated United States v. Booker, 543 U.S.

220 (2005), (2) the district court erred in not holding a hearing on the

government’s § 5K1.1 motion, and (3) a two-level sentence enhancement had

prevented him from receiving drug rehabilitation during his incarceration. The

district court denied the motion. M r. Cromwell filed a notice of appeal but did

not request a certificate of appealability (COA), see 28 U.S.C. § 2253(c)(1)

(requiring C OA ). We construe his notice of appeal as an application for a COA,

which we deny. W e also deny his motion to supplement the record.

      A COA will issue “only if the applicant has made a substantial showing of

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

requires “a demonstration that . . . includes showing 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. M cDaniel, 529 U.S. 473,

484 (2000) (internal quotation marks omitted). In other words, the applicant must

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show that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” Id.

      M r. Cromwell challenges the district court’s denial of his § 2255 motion

solely on the ground that his sentence violated Booker. He admits that under

Tenth Circuit precedent Booker does not apply retroactively to criminal cases

already final when it was decided, but argues that this court is wrong. W e are not

persuaded. No reasonable jurist could conclude that M r. Cromwell’s § 2255

motion should have been decided differently. See United States v. Bellamy, 411

F.3d 1182, 1186-87 (10th Cir. 2005) (“W e . . . join all other circuits that have

examined the question and conclude Booker does not apply retroactively to initial

habeas petitions.”)

      W e DENY a COA and DISM ISS the appeal.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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