                                                                         F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                         April 3, 2007
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court


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

                 Plaintiff-Appellee,                     No. 06-3247
          v.                                             (D . of Kan.)
 SA LV A DO R M EN D EZ-ZA M ORA,              (D.C. Nos. 03-CV-3436-CM and
                                                      00-CR-20066-CM )
                 Defendant-Appellant.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. **


      Salvador M endez-Zamora seeks a Certificate of Appealability (COA) for

his 28 U.S.C. § 2255 habeas petition. He proceeds pro se so we construe his

pleadings liberally. Cummings v. Evans, 161 F.3d 610, 613 (10th Cir. 1998). W e

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

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). W e find no




      *
         This order and judgment is not binding precedent except under the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.
      **
         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.
constitutional rights were denied M endez-Zamora and DENY his request for a

C OA .

                                      I. Analysis

         A federal jury found Salvador M endez-Zamora guilty of 1) conspiracy to

distribute and to possess with intent to distribute at least one kilogram of

methamphetamine; 2) one count of distribution and possession with intent to

distribute more than fifty grams of methamphetamine; 3) one count of possession

with intent to distribute more than five hundred grams of methamphetamine; and

4) one count of using a communication device to facilitate drug distribution. H e

was sentenced to life in prison.

         In seeking a COA, M endez-Zamora raises five issues: 1) use of conflicting

theories by the prosecution to enhance his sentence; 2) ineffective counsel at

sentencing and on appeal; 3) disparity in sentencing; 4) increased punishment by

judicial fact-finding in violation of the Sixth Amendment; and 5) denial of an

evidentiary hearing.

         His claim that the prosecution used conflicting theories to enhance his

sentence in violation of Bradshaw v. Stumpf, 545 U.S. 175 (2005), was not raised

before the district court and thus is waived here. As for his ineffective counsel

claims, M endez-Zamora offered no more than the conclusory statement that “The

District Court’s finding that counsel did not perform deficiently constitutes an

objectively unreasonable application of Strickland.” Application for COA at 5.

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The district court below carefully reviewed the record and found petitioner’s

claims neither demonstrated counsel’s performance was deficient nor that

counsel’s performance prejudiced the petitioner as required by Strickland v.

Washington, 466 U.S. 668, 687–94 (1984). W ithout any evidence or allegations

beyond M endez-Zamora’s conclusory allegation that he was denied effective

counsel, defendant’s claim is inadequate to establish a violation. See Cannon v.

Gibson, 259 F.3d 1253, 1262 n.8 (10th Cir. 2001) (“[C]onclusory assertion that

counsel was ineffective, along with a bald reference to Strickland . . . is simply

not sufficient to preserve this claim.”).

      M endez-Zamora’s third claim is that he was sentenced differently for

exercising his right to a jury trial. He points to disparities between his sentence

and the sentences of co-conspirators that he believes were equally culpable. The

district court found that facts on the record warranted the disparity. As we have

previously noted, disparate sentencing is permissible “where the disparity is

explicable by the facts on the record.” United States v. Garza, 1 F.3d 1098, 1101

(10th Cir. 1993) (quoting United States v. Goddard, 929 F.2d 546, 550 (10th Cir.

1991). In this case, no other defendant was subject to the same sentencing

enhancements as M endez-Zamora and most received sentencing reductions as

well as downward departures for cooperating with the government. M endez-

Zamora portrays downward departures for pleading guilty and cooperating with

the government as punishment for taking his chances w ith a jury trial, but in fact,

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these departures were rew ards offered for accepting culpability. M endez-Zamora

was not punished for exercising his right to a jury trial. He was punished because

a jury found him guilty. M oreover, M endez-Zamora was sentenced within the

United States Sentencing Guidelines range and he raised no argument that the

district court improperly applied 18 U.S.C. § 3553(a).

      Next, M endez-Zamora contends aggravating facts found by the judge

enhanced his sentence in violation of his Sixth Amendment right to a jury as

recognized in Apprendi v. New Jersey, 530 U.S. 466 (2000). He argues the

district court ignored this Sixth Amendment claim.

      To the contrary, the district court addressed it directly. It properly noted

that the statutory maximum sentence for the conspiracy charge involving one

kilogram of methamphetamine, as found by the jury, was life imprisonment per 21

U.S.C. § 841(b)(1)(A)(viii). The enhancements did not exceed this statutory

maximum as required to trigger Apprendi, but rather merely equaled the statutory

maximum; thus no constitutional violation occurred. United States v. Holyfield,

No. 05-1318, 2007 W L______ (10th Cir. M arch __, 2007).

      Finally, M endez-Zamora argues that he was denied an evidentiary hearing

on his § 2255 petition, which he contends he was owed due to alleged issues of

material fact. But when a § 2255 petition can be resolved on the record, as the

district court was able to do here, no evidentiary hearing is necessary. See United

States v. M arr, 856 F.2d 1471, 1472 (10th Cir. 1988). M oreover, M endez-Zamora

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claim s issues of material fact exist on his ineffective counsel claim but, as we

noted, he presented no such issues of fact — rather he presented only a

conclusory statement. W ithout more, we do not even have sufficient guidance as

to what factual inquiry an evidentiary hearing might address if granted. W e

construe petitioner’s claims liberally, but he still must provide some basis for his

claims beyond mere legally conclusory statements.

                                   II. Conclusion

      For all of the foregoing reasons, we agree with the district court and DEN Y

petitioner’s request for a COA.

                                                     Entered for the Court

                                                     Timothy M . Tymkovich
                                                     Circuit Judge




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