                                                                        F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                     January 31, 2007
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court

 UNITED STATES OF AM ERICA
              Plaintiff–Appellee,                        No. 06-7050
 v.                                               (D.C. No. 05-CV-389-W )
 FR AN CISC O JA V IER MA D R ID-                        (E.D. Okla.)
 M ON GE,
              Defendant–Appellant.



                                      OR DER


Before KELLY, M cKA Y, and LUCERO, Circuit Judges.


      This is a 28 U.S.C. § 2255 appeal in which Appellant Francisco Javier

M adrid-M onge is represented by counsel appointed under the provisions of the

Criminal Justice Act. Appellant pleaded guilty to possession with intent to

distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) and 18

U.S.C. § 2, and was sentenced to 120 months’ imprisonment, the m andatory

minimum under § 841(b)(1)(A). Appellant then filed the instant motion with the

district court to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255

in which he argued that (1) the denial of effective assistance of counsel at

sentencing precluded consideration of the safety valve provision contained in 18

U.S.C. § 3553(f); (2) his sentence was imposed based on facts not found by the

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jury and calculated based on mandatory application of the Sentencing Guidelines;

and (3) the denial of effective assistance of counsel prevented direct appeal.

         The district court denied A ppellant’s first two claims and referred the third

to a magistrate judge in order to conduct an evidentiary hearing. The magistrate

judge conducted the hearing and issued a report and recommendation suggesting

denial of Appellant’s third claim, which the district court adopted in a separate

order.

         Appellant advances to this court the same arguments he made below on the

first and third claims; he omits the second claim. However, our consideration of

these claims is predicated on our issuance of a certificate of appealability

(“COA”). Appellant is entitled to a COA only if he makes a “substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To do so,

Appellant must demonstrate “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) (quotation

omitted). In other w ords, the applicant must show that the district court’s

resolution of the constitutional claim was either “debatable or wrong.” Id.

         The district court thoroughly evaluated Appellant’s claim that ineffective

assistance of counsel rendered him ineligible for safety valve relief by reviewing

the entire record, including the transcript of the sentencing hearing. W e agree

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with the district court that the sentencing hearing transcript “clearly shows” that

Appellant’s counsel raised the application of this provision, but that Appellant

rejected several opportunities to take advantage of this provision by refusing to

offer information to the government. 1

      The district court also ensured that Appellant’s third claim, concerning his

inability to perfect an appeal due to ineffective assistance of counsel, was

thoroughly examined. The magistrate judge conducted an evidentiary hearing at

which it became apparent that the plea agreement was fully explained to

Appellant and that Appellant’s expectations of appeal w ere unjustified.

Appellant presents no evidence of his inability to understand and appreciate the

consequences of his guilty plea. M oreover, the magistrate judge recognized that

even if an appeal had been preserved, no non-frivolous grounds for appeal would

have existed given the district court’s rejection of Appellant’s other two

arguments.

      After carefully reviewing the parties’ briefs, the district court’s disposition,

the m agistrate judge’s report and recommendation, and the record on appeal, we

conclude that no reasonable jurist could conclude that Appellant’s counsel was

ineffective under Strickland. A ccordingly, as Appellant has failed to show a

      1
        Appellant bears the burden of establishing that his “counsel’s
representation fell below an objective standard of reasonableness,” Strickland v.
Washington, 466 U.S. 668, 688 (1984), and “that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different,” id. at 694.

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denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2), we must

D EN Y Appellant’s request for a certificate of appealability and DISM ISS the

appeal.

                                              Entered for the Court



                                              M onroe G. M cKay
                                              Circuit Judge




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