                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                    September 1, 2006
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court


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

        Plaintiff-Appellee.
                                                         No. 05-4320
                                                      (District of Utah)
v.
                                               (D.C. No. 2:05-CV-855-DB and
                                                      2:02-CR-198-DB)
M IG U EL A N G EL B OC H,

        Defendant-Appellant.



                                     ORDER


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




      M iguel Angel Boch, appearing pro se, seeks to appeal the district court’s

denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence.

The matter is before this court on Boch’s request for a certificate of appealability

(“COA”). 28 U.S.C. § 2253(c)(1)(B) (providing no appeal may be taken from a

“final order in a proceeding under section 2255” unless the movant first obtains a

COA).

      In 2002, Boch was convicted of illegal reentry following deportation, in

violation of 8 U.S.C. § 1326. He w as sentenced to seventy-two months’
imprisonment to be followed by thirty-six months’ supervised release. United

States v. Boch, 74 F.App’x 866, 867 (10th Cir. 2003). Boch’s sentence reflected

the trial court’s application of an enhancement and a downward departure

pursuant to the United States Sentencing Guidelines. Id.

      Boch filed a direct appeal which was dismissed by this court on August 29,

2003. He filed the instant § 2255 motion on October 13, 2005, asserting his Fifth

and Sixth Amendment rights w ere violated because the trial court calculated his

sentence through the use of judge-found facts. See United States v. Booker, 543

U.S. 220 (2005); United States v. Blakely, 542 U.S. 296 (2004). The district court

denied Boch’s motion on three alternate grounds: (1) it was time-barred pursuant

to the provisions of § 2255, (2) Booker imposes no requirement on the

government to charge in an indictment or prove to the jury the existence of prior

convictions, and (3) Blakely and Booker do not apply retroactively to cases on

collateral review. See U nited States v. M oore, 401 F.3d 1220, 1221 (10th Cir.

2005); United States v. Price, 400 F.3d 844 (10th Cir. 2005); United States v.

Bellam y, 411 F.3d 1182, 1188 (10th Cir. 2005).

      To be entitled to a COA, Boch must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite

showing, he must demonstrate “that reasonable jurists could debate w hether (or,

for that matter, agree that) the petition should have been resolved in a different




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manner or that the issues presented were adequate to deserve encouragement to

proceed further.” M iller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations

omitted); see also Slack v. M cDaniel, 529 U.S. 474, 484-85 (2000) (holding that

when a district court dismisses a habeas petition on procedural grounds, a

petitioner is entitled to a COA only if he shows both that reasonable jurists w ould

find it debatable w hether he had stated a valid constitutional claim and debatable

whether the district court’s procedural ruling was correct). In evaluating whether

Boch has satisfied his burden, this court undertakes “a preliminary, though not

definitive, consideration of the [legal] framework” applicable to each of his

claims. M iller-El at 338. Although Boch need not demonstrate his appeal will

succeed to be entitled to a COA, he must “prove something more than the absence

of frivolity or the existence of mere good faith.” Id.

      Having undertaken a review of Boch’s application for a COA and appellate

filings, the district court’s order, and the entire record on appeal pursuant to the

framew ork set out by the Supreme Court in M iller-El, this court concludes Boch

is not entitled to a COA. The district court’s resolution of Boch’s § 2255 motion

is not reasonably subject to debate and the issues he seeks to raise on appeal are

not adequate to deserve further proceedings. Accordingly, this court denies




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Boch’s request for a COA and dismisses this appeal. Boch’s motion to proceed

in form a pauperis on appeal is denied.

                                      ENTERED FOR THE COURT



                                      M ichael R. M urphy
                                      Circuit Judge




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