                                                                        F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        May 25, 2006
                                   TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                      Clerk of Court


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

                 Plaintiff-Appellee,                    No. 05-2355

          v.                                            (D. of N.M .)
 ED D IE G IO V A N NI D E LEO N -             (D.C. No. CIV-05-982-JP and
 FERNA ND EZ,                                        CR -04-1180-JP)

                 Defendant-Appellant.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


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




      Eddie G iovanni De Leon-Fernandez, a federal prisoner, seeks a Certificate

of Appealability (COA) to appeal the denial of his M otion To Vacate Or Reduce

Sentence pursuant to 28 U .S.C. § 2255. Since he appears pro se, we construe D e

Leon-Fernandez’s pleadings liberally. See Cum mings v. Evans, 161 F.3d 610, 613




      *
         This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
(10th Cir. 1998). W e agree with the district court that a COA should not issue

because De Leon-Fernandez has not made a substantial showing of the denial of a

constitutional right. Accordingly, we DENY the COA and DISM ISS his appeal.

                                  I. Background

      In 1996, De Leon-Fernandez was convicted of dealing in heroin, an

aggravated felony. He was deported from the United States to Guatemala in

A ugust of 2001. A fter he returned illegally to the United States, De

Leon-Fernandez was charged with re-entry of a deported alien previously

convicted of an aggravated felony in violation of 8 U.S.C. §§ 1326(a)(1)-(2) and

(b)(2). W ith assistance of trial counsel, he pleaded guilty to this charge and was

sentenced to 46 months of confinement followed by two years of supervised

release.

      De Leon-Fernandez, appearing pro se, filed a M otion To Vacate Or Reduce

Sentence pursuant to 28 U.S.C. § 2255 in United States District Court for the

District of New M exico. In the motion, De Leon-Fernandez claimed that his

constitutional rights had been violated by the ineffective assistance of his counsel.

Specifically, De Leon-Fernandez asserted that his law yer should have argued for a

lower sentence under Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v.

Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220

(2005). The district court denied De Leon-Fernandez's petition based on the fact

that no showing was made that his sentencing would have been different if his

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attorney had made the arguments raised in his § 2255 motion. The district court

also denied his request for a COA. De Leon-Fernandez raises the same issues on

appeal to this court.

                                    II. Analysis

      A circuit court may issue a certificate of appealability “only if the applicant

has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). W here a district court “has rejected the constitutional claims on the

merits,” an applicant meets this standard by “demonstrat[ing] that reasonable

jurists would find the district court's assessment of the constitutional claims

debatable or wrong.” M iller-El v. Cockrell, 537 U.S. 322, 338 (2003) (quoting

Slack v. M cDaniel, 529 U .S. 473, 484 (2000)). In conducting our analysis, we

need only engage in “an overview of the claims in the . . . petition and a general

assessment of their merits” rather than “full consideration of the factual or legal

bases adduced in support of the claims.” M iller-El, 537 U.S. at 336.

      R easonable jurists w ould not find the district court's ruling on De

Leon-Fernandez's constitutional claims disputable or incorrect. The district court

ruled that Apprendi and Blakely could not affect De Leon-Fernandez’s sentence

because they apply to state rather than federal sentences. See Blakely, 542 U.S. at

305. The district court also held that Booker could not change De Leon-

Fernandez’s sentence because its holding was retroactive only to cases on direct

review. See Booker, 543 U.S. at 266. And we have held that Booker is not

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retroactive in cases on collateral review. United States v. Bellamy, 411 F.3d

1182, 1188 (10th Cir. 2005). Reasonable jurists therefore would not debate

whether the district court's analysis was “contrary to . . . clearly established

Federal law.” See 28 U.S.C. § 2254(d)(1); Strickland v. Washington, 466 U.S.

668, 697 (1984). A ccordingly, we adopt the district court’s reasoning.

                                   III. Conclusion

      For these reasons, De Leon-Fernandez has failed to make a sufficient

show ing that he is entitled to a COA. Accordingly, we DENY De

Leon-Fernandez's application for a COA and DISM ISS this appeal.

                                                 Entered for the Court



                                                 Timothy M . Tymkovich
                                                 Circuit Judge




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