                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      July 27, 2006
                                 TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                      Clerk of Court


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

               Plaintiff-Appellee.                      No. 06-2057
          v.                                      District of New M exico
 JOSE ALFREDO VA RELA-OR TIZ,                (D.C. No. CIV-05-1253 W P/LFG )

               Defendant-Appellant,



                                      OR DER *


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      Jose Alfredo Varela-Ortiz, a federal prisoner proceeding pro se, seeks a

certificate of appealability (COA) that would allow him to appeal the district

court’s order denying his habeas corpus petition under 28 U.S.C. § 2255. See 28

U.S.C. § 2253(c)(1)(B). Because we conclude that M r. Varela-Ortiz has failed to

make “a substantial showing of the denial of a constitutional right,” we DENY his

request for a COA and dismiss the appeal. 28 U.S.C. § 2253(c)(2).




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel.
                                  I. Background

      In 2002, M r. Varela-Ortiz, a M exican citizen, pleaded guilty to possession

with intent to distribute less than 500 grams of a mixture or substance containing

a detectable amount of cocaine, and aiding and abetting the same, in violation of

21 U.S.C. §§ 841(a)(1) and (b)(1)(C), and 18 U.S.C. § 2. See United States v.

Varela-O rtiz, 149 Fed. App’x 762, 763 (10th Cir. 2005) (unpublished opinion).

He was sentenced to 18 months in prison, followed by 3 years of supervised

release. Id. On June 5, 2004, M r. Varela-Ortiz w as arrested and charged with

illegally re-entering the United States after deportation. Id. He pleaded guilty

and was sentenced to 46 months in prison, again to be followed by 3 years of

supervised release.

      On direct appeal before this Court, M r. Varela-Ortiz argued that the district

court committed non-constitutional Booker error by imposing his 46-month

sentence pursuant to the then-mandatory Guidelines. Id. at 764; see United States

v. Booker, 543 U.S. 220 (2005). W e affirmed the sentence, finding that although

the district court had committed plain error, M r. Varela-Ortiz failed to show that

the error was “‘particularly egregious’.” Varela-Ortiz, 149 Fed. App’x at 764

(quoting United States v. Gonzalez-Huerta, 403 F.3d 727, 736 (10th Cir. 2005)).

      On November 30, 2005, M r. Varela-Ortiz filed a motion in the district court

to vacate or reduce sentence pursuant to 28 U.S.C. § 2255. He argued that the

sentence exceeded the statutory maximum for his offense and that the district

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court improperly enhanced the sentence because the indictment did not charge a

prior conviction. He also argued that the district court erred in calculating his

sentence by applying the Sentencing Guidelines in a mandatory manner. The

district court dismissed the first claim, finding that the indictment specifically

mentioned M r. Varela-Ortiz’s prior aggravated felony conviction and that the

court was therefore authorized to enhance the sentence under 8 U.S.C. § 1326

(b)(2). The district court also adopted this Court’s previous disposition on the

Booker issue and dismissed M r. V arela-O rtiz’s § 2255 motion.

                                    II. Discussion

      The denial of a motion for relief under § 2255 may be appealed only if the

district court or this Court first issues a COA. 28 U.S.C. § 2253(c)(1)(B). A

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

denial of a constitutional right.” Id. § 2253(c)(2). In order to make such a

showing, a petitioner must demonstrate that “reasonable jurists could debate

whether . . . 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, 483-84 (2000) (internal quotation marks

omitted).

      M r. Varela-Ortiz first argues that his enhanced sentence amounted to a

violation of due process because the government did not mention a prior

conviction in the indictment charging him with illegal reentry. However, as the

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district court pointed out, the indictment plainly charged that M r. Varela-Ortiz

had previously been convicted of possession of cocaine with intent to distribute,

an aggravated felony. R. Doc. 4, p. 1; No. 04 CR1387, Doc. 8. Because of M r.

Varela-Ortiz’s prior conviction, the statutory maximum sentence under § 1326(a)

did not apply and the district court could sentence him in accordance with §

1326(b)(2), which carries a statutory maximum of twenty years.

      M r. Varela-Ortiz also argues that the district court erred in sentencing him

according to the Guidelines and that his sentence is unreasonable in light of

Booker. Because we already disposed of this issue on direct appeal, M r. Varela-

Ortiz may not raise it again in a § 2255 petition. See United States v. Warner, 23

F.3d 287, 291 (10th Cir. 1994); United States v. Pritchard, 875 F.2d 789, 791

(10th Cir. 1989).

      Finally, M r. Varela-Ortiz asks us to determine whether, in light of Apprendi

v. New Jersey, 530 U.S. 466 (2000), the validity of the Supreme Court’s holding

in Almendarez-Torres v. United States, 523 U.S. 224 (1998), must be

reconsidered. W e have no authority to decide this question, nor can we divine

how the Supreme Court might decide it. See United States v. M ichel, 446 F.3d

1122, 1133 n.4 (10th Cir. 2006) (“Unless and until the Supreme Court determines

otherwise, we will continue to follow the rule laid out in Almendarez-Torres.”).




                                         -4-
      For the foregoing reasons, we find that M r. Varela-Ortiz has failed to make

a substantial show ing of a denial of a constitutional right. Accordingly, we

D EN Y his request for a COA and DISM ISS this appeal.

                                               Entered for the Court,

                                               M ichael W . M cConnell
                                               Circuit Judge




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