                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                  December 2, 2008
                                TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                       No. 08-2183
 v.                                            (D.C. Nos. 07-CV-01121 and
                                                   05-CR-01796-RB-1)
 ARTURO DAVID ARMIJO,                                   (D.N.M.)

       Defendant - Appellant.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before TACHA, KELLY, and McCONNELL, Circuit Judges.


      Defendant-Appellant, Arturo David Armijo seeks to appeal from the denial

of his 28 U.S.C. § 2255 motion. Mr. Armijo pled guilty to possession with intent

to distribute 50 grams and more of methamphetamine, 21 U.S.C. §§ 841(a)(1),

(b)(1)(A), and was sentenced to 151 months’ and five years’ supervised release.

D. Ct. (CR 05-1796) Docket No. 71. His sentence was in part attributable to an

enhancement based upon possession of a firearm. Mr. Armijo waived his right to

appeal his conviction and any sentence within the statutory maximum, as well as

to make any collateral attack pursuant to § 2255, except for ineffective assistance

of counsel. D. Ct. (CR 05-1796) Docket No. 53.

      In his § 2255 motion, Mr. Armijo argued that (1) the district court lacked
subject matter jurisdiction because the statute conferring criminal jurisdiction

upon the district courts, 18 U.S.C. § 3231 was not validly enacted, and (2)

ineffective assistance of counsel based upon a failure to object to the

enhancement based upon a lack of constructive possession of the firearm. He also

contends that counsel was ineffective because she allowed the government to

breach the plea agreement (the enhancement was not discussed in the plea

agreement).

      Mr. Armijo’s contention that § 3231 was not validly enacted is meritless.

See United States v. Risquet, 426 F. Supp. 2d 310, 311 (E.D. Pa. 2006). To

establish ineffective assistance of counsel, Mr. Armijo must demonstrate deficient

performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984).

He has done neither–the district court noted that it had addressed similar

arguments by counsel concerning the firearm enhancement. I R. Doc. 6 at 3; see

also D. Ct. (CR 05-1796) Docket No. 59 at 3-4 (objections to PSR on firearm

enhancement), No. 68 (sentencing memorandum arguing against enhancement).

Plainly, this was a credibility determination by the district court; counsel

adequately presented the issue and Defendant cannot show a reasonable

probability that an appeal on this issue might have succeeded. See United States

v. Sallis, 533 F.3d 1218, 1225-26 (10th Cir. 2008) (noting that government need

only prove a temporal and spatial relationship between the weapon, drug

trafficking activity and the defendant; thereafter the defendant must satisfy the

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district court that it is clearly improbable that the weapon was connected to the

offense). Finally, the plea agreement made no mention of the firearm

enhancement, but did acknowledge that the district court was required to consider

the advisory guidelines in sentencing and also provided that the government

reserved the right to make pertinent information known to the Probation Office.

D. Ct. (CR 05-1796) Docket No. 53 at 2-3. Under the circumstances, Mr.

Armijo’s claim concerning ineffective assistance of counsel based upon a breach

of the plea agreement is without merit.

      We DENY IFP status, a COA, and DISMISS the appeal.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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