                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                                  FEB 5 2003
                                       TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                         Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,
                                                              No. 02-4043
 v.                                                    D.C. No. 2:02-CV-66-C and
                                                             2:01-CR-335-C
 JESUS GUERRERO-LOPEZ,                                          (D. Utah)

               Defendant - Appellant.


                              ORDER AND JUDGMENT*


Before SEYMOUR, HENRY, and BRISCOE, Circuit Judges.


       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered

submitted without oral argument.

       Defendant Jesus Guerrero-Lopez seeks a certificate of appealability (COA) to

challenge the district court’s denial of his motion to correct sentence pursuant to 28



       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
U.S.C. § 2255. Because he has failed to make a “substantial showing of the denial of a

constitutional right,” as required by U.S.C. § 2253(c)(2), we deny his request for a COA

and dismiss the appeal.

       Defendant pled guilty to illegal re-entry of a deported alien pursuant to 8 U.S.C.

§ 1326. Based on a total offense level of 21 and a criminal history category of VI, the

guideline range of imprisonment for defendant was 77 to 96 months. The district court

sentenced him to 96 months. Defendant did not file a direct appeal. He filed his pro se

motion to correct sentence, stating he “was never informed of the specifics [by] his

previous court appointed counsel . . . prior to his pleading guilty,” Motion at 1, and

specifically asserting the district court incorrectly sentenced him in comparison to

similarly-situated prisoners. Defendant also requested appointment of counsel. The

district court denied defendant’s request for appointment of counsel, found that

defendant’s sentence was within the guideline range, and denied relief.

       In his application for a COA, defendant claims his counsel was ineffective for

failing to translate the presentence report or provide a copy of the report to defendant in

Spanish. He also claims his guilty plea was unlawful because counsel only briefly

explained the nature of the plea, did not provide a copy of the plea agreement in Spanish,

and led him to believe the government would recommend the low end of the guideline

range and that his state and federal sentences would run concurrently. These issues are

raised for the first time on appeal and will not be considered. In re Walker, 959 F.2d 894,


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896 (10th Cir. 1992) (stating “a federal appellate court does not consider an issue not

passed upon below”).1

       If we liberally construe defendant’s assertion that counsel failed to adequately

inform him of the sentence ramifications of his plea as a claim of ineffective assistance of

counsel, this claim fails. To show ineffective assistance of counsel, defendant must show,

among other things, prejudice flowing from deficient representation, that is, that “there is

a reasonable possibility that, but for counsel’s professional error, the result of the

proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694

(1984). The district court determined that defendant failed to show a disparate sentence.

When we apply the Strickland criteria in assessing the merits of the claim raised in

conjunction with any ineffective assistance of counsel claim, we cannot conclude

defendant was prejudiced as regards any explanation counsel could provide defendant

concerning disparate sentence.

       The request for a COA is DENIED and the appeal is DISMISSED. The mandate

shall issue forthwith.

                                                    Entered for the Court

                                                    Mary Beck Briscoe
                                                    Circuit Judge



       1
         Defendant attaches a § 2255 form motion to his application for a COA. This
motion is dated August 12, 2002. However, this is not the motion that was filed in and
considered by the district court.

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