                                                                             F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit

                                                                           February 27, 2006
                    UNITED STATES COURT OF APPEALS
                                                                           Elisabeth A. Shumaker
                                     TENTH CIRCUIT                            Clerk of Court


 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                           No. 05-3092
          v.                                            District of Kansas
 ADAM GRABEL GUZMAN,                            (D.C. Nos. 04-CV-3217-RDR &
                                                      00-CR-40126-RDR)
               Defendant-Appellant.


                                        ORDER *


Before HARTZ , SEYMOUR , and McCONNELL , Circuit Judges.


       Adam Grabel Guzman, a federal prisoner, seeks a certificate of

appealability (COA) that would allow him to appeal from 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 Mr. Guzman has failed to make “a

substantial showing of the denial of a constitutional right,” we deny his request

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




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       This order is not binding precedent, except under the doctrines of law of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

       On June 22, 2001, Mr. Guzman pleaded guilty to conspiracy to distribute

500 grams or more of methamphetamine in violation of 21 U.S.C. § 846 and, as

part of his plea agreement, waived of his right to directly appeal or collaterally

challenge his sentence. On July 16, 2002, he was sentenced to 324 months, or 27

years, in prison.   In sentencing, the court considered facts that it had determined

under a preponderance of the evidence standard.

       Mr. Guzman filed a direct appeal to the Tenth Circuit, which this Court

dismissed, holding that he had waived his right to appeal or collaterally attack his

sentence and that the waiver was not unknowing or involuntary.         Next, Mr.

Guzman filed a motion in the district court to collaterally attack his sentence

under 28 U.S.C. § 2255.     The district court denied the motion because Mr.

Guzman had waived his right to collaterally attack his sentence and because

United States v. Booker,   125 S.Ct. 738 (2005),   did not apply retroactively.    Mr.

Guzman now seeks a COA that would allow him to appeal from the district

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

                                    II. Discussion

       The denial of a motion for relief under 28 U.S.C. § 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


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showing of the denial of a constitutional right.” 28 U.S.C. § 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. McDaniel , 529 U.S. 473, 484 (2000) (internal

quotation marks and citation omitted).

       In his request for a COA, Mr. Guzman contends that the sentencing

enhancement he received based on facts found by a judge under a preponderance

of the evidence standard, as opposed to being found by a jury under a beyond a

reasonable doubt standard, is constitutional error remediable on collateral review.

He claims that the Supreme Court’s decisions in       Blakely v. Washington , 542 U.S.

296 (2004), and United States v. Booker , 543 U.S. 220 (2005), apply retroactively

to invalidate his sentence. While Mr. Guzman acknowledges that this Circuit has

held that “ Booker does not apply retroactively to initial habeas petitions,”   United

States v. Bellamy , 411 F.3d 1182, 1186 (10th Cir. 2005), he argues that that

holding is limited to cases concerning the allocation of fact-finding between judge

and jury. Specifically, Mr. Guzman contends that there are two procedural

protections for sentencing provided by the     Blakely/Booker holdings: (1) that a

jury, not a court, should conduct the fact-finding relative to sentencing and (2)

that facts should be found beyond a reasonable doubt, not by a preponderance of


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the evidence. Mr. Guzman argues that         Bellamy concerns only the first of the two

Booker protections because Bellamy relies on Schriro v. Summerlin , 542 U.S. 348,

353 (2004), which only addressed the retroactive application of       Booker in the

context of judicial factfinding.

       This argument, however, is flawed because Mr. Guzman’s characterization

of the Booker holding is inaccurate. Mr. Guzman contends that, under         Booker ,

facts used by a judge in sentencing must be proven beyond a reasonable doubt.

But as this Court held in   United States v. Magallanez , “[b]oth before and under

the [Federal Sentencing] Guidelines, facts relevant to sentencing have generally

been found by a preponderance of the evidence” and “[n]othing in         Booker

changes this analysis.” 408 F.3d 672, 684 (10th Cir. 2005) (citing       United States

v. Watts , 519 U.S. 148, 155 (1997)). Mr. Guzman’s characterization of        Booker is

inaccurate, and Bellamy’s blanket statement that “ Booker does not apply

retroactively to initial habeas petitions” stands. Thus, Mr. Guzman cannot

challenge his sentence under       Booker , as Booker does not apply retroactively to

collateral petitions.


       Accordingly, we DENY Adam Grabel Guzman’s request for a COA and

DISMISS this appeal.

                                                    Entered for the Court,

                                                    Michael W. McConnell

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      Circuit Judge




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