                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            MAR 22 2005
                                 TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                          No. 04-2200
 v.                                                (D.C. Nos. CR-02-2117 JP
                                                    and CIV-04-323 JP/ACT)
 DOMINIC JARAMILLO,                                        (D.N.M.)

       Defendant - Appellant.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, HENRY, and TYMKOVICH, Circuit Judges.


      Defendant-Appellant Dominic Jaramillo, a federal prisoner appearing pro

se, seeks a certificate of appealability (“COA”) allowing him to appeal the district

court’s order denying his 28 U.S.C § 2255 motion. Because Mr. Jaramillo has

failed to make a “substantial showing of the denial of a constitutional right” as

required by 28 U.S.C. § 2253(c)(2), we deny his request for a COA and dismiss

his appeal.

      Mr. Jaramillo pleaded guilty to aggravated sexual abuse of a child in Indian

Country. The applicable criminal statute prohibits “in the special maritime and

territorial jurisdiction of the United States . . . , knowingly engag[ing] in a sexual
act with another person who has not attained the age of 12 years” and specifies a

maximum sentence of life imprisonment. 18 U.S.C. § 2241(c). Pursuant to the

Sentencing Guidelines, the presentence report calculated Mr. Jaramillo’s offense

level including a 4-point enhancement under U.S.S.G. § 2A3.1(b)(1) for use of

force or threat. At sentencing, the district court agreed and imposed a 151-month

term of imprisonment. As part of his plea agreement, Mr. Jaramillo waived

appeal rights, and he did not appeal his sentence.

      In his § 2255 petition, Mr. Jaramillo argued that there was insufficient

evidence that he used threats to coerce his nine year old victim. As a result, he

maintained that the enhancement was erroneous. He also claimed that his counsel

was ineffective for failing to contest the enhancement. Sua sponte, the district

court rejected the applicability of Blakely v. Washington, __ U.S. __, 124 S. Ct.

2531 (2004), to this § 2255 motion.

      Ineffective assistance of counsel requires a showing of deficient

performance and prejudice. United States v. Harfst, 168 F.3d 398, 402 (10th Cir.

1999). Assuming, without deciding, that counsel improperly failed to investigate,

explain, or make appropriate objections to the enhancement, Mr. Jaramillo fails to

satisfy the “prejudice” requirement by showing that “there is a reasonable

probability that, but for counsel’s errors, he would not have [received the

enhancement].” Hill v. Lockhart, 474 U.S. 52, 59 (1985); Romero v. Tansy, 46


                                         -2-
F.3d 1024, 1033 (10th Cir. 1995). The PSR and Mr. Jaramillo’s guilty plea and

statements to investigators presented abundant evidence of his use of force,

undercutting his prejudice argument. Though Mr. Jaramillo refuted some of this

evidence (and offered alternative explanations for his conduct) in his request for a

certificate of appealability, the district court’s resolution of this issue is not

reasonably debatable given the argument and evidence before it.

      Mr. Jaramillo contends that the enhancement is infirm because he did not

admit the facts relied upon for enhancement, nor were they found by a jury. Of

course, the Supreme Court recently held that the rule announced in Blakely is

applicable to the Sentencing Guidelines. United States v. Booker, __ U.S. __,

125 S. Ct. 738 (2005). In deciding Booker, the Court unequivocally reiterated the

proposition announced in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000),

stating that “[a]ny fact (other than a prior conviction) which is necessary to

support a sentence exceeding the maximum authorized by the facts established by

a plea of guilty or a jury verdict must be admitted by the defendant or proved to a

jury beyond a reasonable doubt.” Booker, 125 S. Ct. at 756. However, Blakely

does not apply to a case like this one that is on collateral review. Schriro v.

Summerlin, 124 S. Ct. 2519, 2522-26 (2004) (concluding that Ring v. Arizona,

536 U.S. 584 (2002) was procedural and did not apply retroactively); United

States v. Price, No. 04-7058, 2005 WL 535361, at *1 (10th Cir. Mar. 8, 2005).


                                           -3-
We DENY Mr. Jaramillo’s request for a COA and DISMISS this appeal.

                             Entered for the Court


                             Paul J. Kelly, Jr.
                             Circuit Judge




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