                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                   UNITED STATES COURT OF APPEALS                    May 7, 2014
                                                                 Elisabeth A. Shumaker
                                TENTH CIRCUIT                        Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,
                                                         No. 13-8083
 v.
                                             (D.C. Nos. 2:13-CV-00010-NDF and
                                                   2:06-CR-00157-CAB-1)
 JAIME MANUEL PEÑA,
                                                          (D. Wyo.)
              Defendant-Appellant.



          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before GORSUCH, MURPHY, and HOLMES, Circuit Judges.


      Jaime Manuel Peña, proceeding pro se, 1 seeks a certificate of appealability

(“COA”) to contest the district court’s denial of his motion to vacate, set aside, or

correct his sentence pursuant to 28 U.S.C. § 2255. Because reasonable jurists

could not debate the correctness of the district court’s decision, we deny Mr.




      *
              This order is not binding precedent, except under the doctrines of law
of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
      1
             Because Mr. Peña appears pro se, we afford his filings a liberal
construction. See Garza v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010); Yang
v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
Peña’s application, deny in forma pauperis (“IFP”) status, and dismiss this matter.

                                          I

      In July 2006, a federal grand jury indicted Mr. Peña on one count of

conspiracy to possess with intent to distribute and to distribute methamphetamine,

in violation of 21 U.S.C. §§ 841(a)(1) and 846. Mr. Peña proceeded to trial and

was convicted. The district court sentenced him to serve 325 months’

imprisonment followed by five years of supervised release. In doing so, the court

applied a two-level enhancement under the United States Sentencing Guidelines

(“U.S.S.G.” or “Guidelines”), because of the presence of a firearm during the

offense of conviction. A panel of this court affirmed Mr. Peña’s conviction and

sentence. See United States v. Peña, 279 F. App’x 702, 710 (10th Cir. 2008).

      Mr. Peña subsequently 2 sought § 2255 relief in the District of Wyoming,

alleging that: (1) 21 U.S.C. §§ 841(a) and (b) are unconstitutionally vague as

applied to his case; (2) he received ineffective assistance of counsel; (3) his

sentence violates the Eighth Amendment’s prohibition on cruel and unusual

punishment; and (4) three Supreme Court cases were potentially relevant to the



      2
             Although Mr. Peña originally filed his § 2255 motion in 2009, the
matter “was never formally opened by the district court.” R. at 11 (Order, filed
Jan. 24, 2013). Presumably, the error came to light when Mr. Peña sought this
court’s permission to file a second or successive § 2255 motion. The district
court opened Mr. Peña’s first § 2255 motion on January 14, 2013, and the Tenth
Circuit Clerk issued an order dismissing his second-or-successive application on
January 24, 2013.

                                          2
determination of his case. Without holding an evidentiary hearing, the district

court rejected all of his claims on the merits and did not issue a COA.

      On January 9, 2014, Mr. Peña filed a combined opening brief and

application for a COA in this court. He requested IFP status in a separate,

contemporaneous filing.

                                         II

                                         A

      A COA is a jurisdictional prerequisite to our review of the district court’s

denial of a § 2255 motion. See 28 U.S.C. § 2253(c)(1)(B); Clark v. Oklahoma,

468 F.3d 711, 713 (10th Cir. 2006). It will issue only if the applicant makes “a

substantial showing of the denial of a constitutional right.” Woodward v. Cline,

693 F.3d 1289, 1292 (10th Cir.) (quoting 28 U.S.C. § 2253(c)(2)) (internal

quotation marks omitted), cert. denied, --- U.S. ----, 133 S. Ct. 669 (2012). “To

make such a showing, an applicant must demonstrate ‘that reasonable jurists

could debate whether (or, for that matter, agree that) the petition should have

been resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.’” Harris v. Dinwiddie, 642 F.3d 902,

906 (10th Cir. 2011) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

                                         B

      Mr. Peña requests a COA in order to challenge the district court’s

determinations regarding: (1) his “as-applied” vagueness challenge to 21 U.S.C.

                                          3
§§ 841(a) and (b); (2) his ineffective-assistance-of-counsel claim; (3) his Eighth

Amendment claim; and (4) the relevance of three Supreme Court cases. We take

up his arguments in turn and reject them.

                                            1

      All criminal statutes “must give a person of ordinary intelligence fair notice

that his contemplated conduct is forbidden.” United States v. Lovern, 590 F.3d

1095, 1103 (10th Cir. 2009) (internal quotation marks omitted). “[T]hose that fail

this test are treated as no laws at all: they are ‘void for vagueness.’” Id. (quoting

Colautti v. Franklin, 439 U.S. 379, 390 (1979)). Void-for-vagueness objections

“rest on [a] lack of notice, and hence may be overcome in any specific case where

reasonable persons would know that their conduct is at risk.” Maynard v.

Cartwright, 486 U.S. 356, 361 (1988).

      As is relevant here, Mr. Peña disputes the constitutionality of 21 U.S.C.

§ 841(a)(1), which states, in relevant part, that “it shall be unlawful for any

person knowingly or intentionally . . . [to] distribute, or . . . possess with intent

to . . . distribute . . . a controlled substance.” He also challenges 21 U.S.C.

§ 841(b), which provides that “any person who violates subsection (a) . . . shall be

sentenced to a term of imprisonment which may not be less than 10 years or more

than life.” However, the crux of his argument is a disagreement with the

sentencing court’s consideration of his possession of a firearm and other “relevant




                                            4
conduct” contemplated by the Guidelines. 3 More specifically, Mr. Peña contends

that the applicable statutory provisions nowhere mention a firearm or “relevant

conduct” and, therefore, could not have provided notice that his actions would be

unlawful. We disagree.

      “[T]he authority of a judge to exercise broad discretion in imposing a

sentence within a statutory range” cannot be gainsaid. United States v. Booker,

543 U.S. 220, 233 (2005). Guided by that principle, in United States v. Ramirez

we rejected a vagueness challenge to 21 U.S.C. §§ 841 and 846 wherein the

defendant (who also was assessed a sentencing enhancement) insisted he “could

not have known that he would be subject to criminal liability for . . . conduct

recognized by sentencing enhancements.” 479 F.3d 1229, 1256 (10th Cir. 2007)

(internal quotation marks omitted), abrogated on other grounds as recognized in

United States v. Bagby, 696 F.3d 1074, 1081 (10th Cir. 2012). We observed in so

doing that “sentencing courts may exercise[ ] discretion . . . in imposing sentence

within statutory limits in the individual case. Where the guidelines are merely

advisory, as they were at the time of [the defendant’s] sentencing, the maximum

sentence is the statutory limit, not the upper bound of the calculated guidelines

range.” Id. at 1257 (first alteration and omission in original) (citations omitted)

(internal quotation marks omitted). Importantly, we concluded that the statutory

      3
            Mr. Peña does not dispute the district court’s finding that his 325-
month sentence does not exceed statutory limits or the advisory range indicated
by the Guidelines.

                                          5
provisions were not unconstitutionally vague, because “[t]he sentencing

enhancements were not required to be included in the statute as elements of the

crime.” Id. (emphasis added). Ramirez remains controlling precedent on this

issue and makes clear that Mr. Peña’s as-applied vagueness challenge has no heft.

      Our pre- and post-Booker case law bolsters this conclusion. Notably, in

United States v. Magallanez, we stated that “[e]ven prior to the Sentencing

Reform Act, . . . a sentencing court had broad discretion to consider information

concerning the defendant’s life and characteristics, including conduct on which he

had not been convicted.” 408 F.3d 672, 684 (10th Cir. 2005). And, in United

States v. Crockett, we noted that “[u]nder an advisory Guidelines regime, a

conviction, by itself, authorizes a sentence up to the statutory maximum.” 435

F.3d 1305, 1319 (10th Cir. 2006).

      Thus, as we concluded in Crockett, “the facts guiding the district court’s

exercise of discretion need not be found beyond a reasonable doubt.” Id.; see

also United States v. Eagan, 965 F.2d 887, 892 (10th Cir. 1992) (affirming

firearm-possession enhancement even where the jury had acquitted on “using-and-

carrying” charge); United States v. Coleman, 947 F.2d 1424, 1429 (10th Cir.

1991) (same). These cases, along with Guidelines commentary—i.e., that

“[c]onduct that is not formally charged or is not an element of the offense of

conviction may enter into the determination of the applicable guideline sentencing

range,” U.S.S.G. § 1B1.3, cmt. background (2006)—lead ineluctably to the

                                          6
conclusion that the district court was correct to reject Mr. Peña’s vagueness

challenge. Accordingly, we affirm the district court’s denial of his § 2255 motion

on this basis.

                                          2

      Turning next to Mr. Peña’s ineffective-assistance-of-counsel claim, we note

that he “must show both that his counsel’s performance ‘fell below an objective

standard of reasonableness’ and that ‘the deficient performance prejudiced the

defense.’” Byrd v. Workman, 645 F.3d 1159, 1167 (10th Cir. 2011) (quoting

Strickland v. Washington, 466 U.S. 668, 687–88 (1984)). “These two prongs may

be addressed in any order, and failure to satisfy either is dispositive.” Littlejohn

v. Trammell, 704 F.3d 817, 859 (10th Cir. 2013) (internal quotation marks

omitted). In assessing the challenged conduct, we consider “counsel’s

perspective at the time” and “strongly” presume counsel has “rendered adequate

assistance and made all significant decisions in the exercise of reasonable

professional judgment.” United States v. Challoner, 583 F.3d 745, 749 (10th Cir.

2009) (internal quotation marks omitted).

      Mr. Peña contends that he was the victim of ineffective assistance of

counsel in several respects. With no supporting factual record, he asserts that his

attorney: (1) failed to explain the federal trial process; (2) presumed he would

plead guilty and thus inadequately prepared for trial; (3) did not “explore . . . his

desire to accept responsibility,” R. at 7 (Mot. to Vacate Sentence, filed Jan. 14,

                                          7
2013); (4) disputed the appropriate quantum of necessary pretrial investigation;

(5) “failed to explain that [he] was unable to proceed to trial on the disputed facts

while conceding guilt on other facts,” id. at 60 (Mem. in Support of Mot. to

Vacate, filed June 27, 2013) (capitalization altered); (6) failed to explain the

sentencing process; (7) “failed to press [his] age, upbringing, and personal

surroundings” at sentencing, id. (capitalization altered); and (8) “failed to present

the undisputable fact that the drug guidelines are based on congressional

meddling,” id. (capitalization altered). The district court found that all eight

challenges failed under the Strickland rubric, and so do we.

      As the Strickland Court explained, we need not address both aspects of an

ineffective-assistance claim if the defendant’s showing on one is insufficient. See

466 U.S. at 697; accord McGee v. Higgins, 568 F.3d 832, 839 (10th Cir. 2009).

Mr. Peña’s ineffective-assistance arguments plainly founder on Strickland’s

prejudice prong for failure to demonstrate a “reasonable probability”—or, indeed,

any probability—“that, but for counsel’s unprofessional error(s), the result of the

proceeding . . . would have been different.” Cargle v. Mullin, 317 F.3d 1196,

1202 (10th Cir. 2003). “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” McGee, 568 F.3d at 839 (quoting

Strickland, 466 U.S. at 694) (internal quotation marks omitted).

      For Mr. Peña, the “outcomes” in question are whether, but for counsel’s

performance, he would have (1) opted to plead guilty rather than go to trial; (2)

                                           8
been acquitted rather than convicted; or (3) received a less onerous sentence. No

favorable reading of his filings brings such an argument to light. In fact, our

review of the record leaves us with no doubt that all of Mr. Peña’s ineffective-

assistance contentions are either impermissibly vague or patently wrong.

Ultimately, it is beyond cavil that conclusory allegations such as those advanced

by Mr. Peña do not satisfy Strickland’s prejudice inquiry. See Cummings v.

Sirmons, 506 F.3d 1211, 1233–34 (10th Cir. 2007) (noting that “[w]ithout a more

precise identification of what [deficiencies Defendant] is referring to,” no

prejudice can be found); see also Hinton v. Alabama, --- U.S. ----, 134 S. Ct.

1081, 1088 (2014) (noting that most choices of counsel are “virtually

unchallengeable” under Strickland (internal quotation marks omitted)).

      In sum, because Mr. Peña offers only vague and conclusory allegations and

does not argue prejudice, his ineffective-assistance claim is thoroughly

unpersuasive. The district court was consequently justified in rejecting this claim

as grounds for habeas relief.

                                          3

      Next, Mr. Peña alleges that his sentence violates the Eighth Amendment’s

proscription of “inherently barbaric punishments under all circumstances and

punishments that are disproportionate to the crime committed.” United States v.

Orona, 724 F.3d 1297, 1300 (10th Cir.) (internal quotation marks omitted), cert.

denied, --- U.S. ----, 134 S. Ct. 662 (2013). The entirety of this claim is that his

                                          9
sentence offends the Eighth Amendment because it was allegedly “imposed absent

consideration of a maturing society.” R. at 7. Setting aside the established

principle that such a bare-bones allegation does not comprise a viable Eighth

Amendment claim, see Handy v. Price, 996 F.2d 1064, 1068 (10th Cir. 1993), we

find it pellucid that his sentence is proportionate. As discussed above, Mr. Peña’s

325-month (or roughly twenty-seven-year) sentence falls squarely within the

statutory range of ten years to life corresponding to his offense of conviction. See

21 U.S.C. § 841(b)(1)(A). Because “[g]enerally, a sentence within the limits

imposed by statute is neither excessive nor cruel and unusual under the Eighth

Amendment,” United States v. Gillespie, 452 F.3d 1183, 1190 (10th Cir. 2006), it

is clear that no additional argument could revive Mr. Peña’s challenge.

      We have held this view for decades and, absent compelling legal argument

to the contrary, do not stray from it here. See United States v. Kuck, 573 F.2d 25,

27–28 (10th Cir. 1978) (“Although the Eighth Amendment is a constitutional

limitation on congressionally prescribed penalties, legislative provision for a

penalty is some indication that it does not offend ‘the evolving standards of

decency that mark the progress of a maturing society.’” (quoting Trop v. Dulles,

356 U.S. 86, 101 (1958))); Andrus v. Turner, 421 F.2d 290, 292 (10th Cir. 1970)

(“[A] sentence will not be . . . considered as cruel and unusual punishment if it is

within the statutory limits.”); see also United States v. Angelos, 433 F.3d 738,




                                         10
750 (10th Cir. 2006) (observing that the Supreme Court has only invalidated two

sentences on Eighth Amendment grounds in the past century).

                                          4

      When Mr. Peña filed his § 2255 motion, he hoped that three cases before

the Supreme Court—Johnson v. United States, 559 U.S. 133 (2010), United States

v. O’Brien, 560 U.S. 218 (2010), and Graham v. Florida, 560 U.S. 48

(2010)—would beneficially impact his case. The district court noted that Mr.

Peña had not “expound[ed] upon how he expected these cases to affect his case,”

R. at 118 (Dist. Ct. Order, filed Sept. 24, 2013), and ultimately ruled that “[n]one

of these cases have any bearing on [Mr. Peña’s] case whatsoever,” id. at 119.

      It is patent that reasonable jurists could not debate the correctness of the

district court’s determination on this point: Johnson held that a state battery

conviction was not a “violent felony” under the Armed Career Criminal Act, see

559 U.S. at 141–42; O’Brien held that whether a firearm is a “machinegun” must

be proved to the jury beyond a reasonable doubt, see 560 U.S. at 235; and

Graham held that the Eighth Amendment “prohibits the imposition of a life

without parole sentence on a juvenile offender who did not commit homicide,”

560 U.S. at 82. These cases are at best tangentially relevant to Mr. Peña’s case,

in that they involve sentencing enhancements, firearms, and the Eighth

Amendment, respectively. Moreover, Mr. Peña’s failure to lodge any argument in




                                         11
support of this claim renders it fatally infirm. Accordingly, we reject his request

for a COA on this issue.

                                         III

      Mr. Peña also requests IFP status, an issue the district court did not

consider in ruling on his § 2255 motion. However, he has failed to demonstrate

“the existence of a reasoned, nonfrivolous argument on the law and facts in

support of the issues raised on appeal.” Watkins v. Leyba, 543 F.3d 624, 627

(10th Cir. 2008) (quoting McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812

(10th Cir. 1997)) (internal quotation marks omitted). As a result, he is not

entitled to proceed IFP.

                                         IV

      For the foregoing reasons, we conclude that reasonable jurists could not

debate the correctness of the district court’s rulings. Thus, we DENY Mr. Peña’s

request for a COA and DENY his motion for IFP status. This matter is hereby

DISMISSED.



                                               Entered for the Court


                                               JEROME A. HOLMES
                                               Circuit Judge




                                         12
