                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                October 17, 2012
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                  Clerk of Court
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,
          v.                                            No. 12-2079
                                            (D.C. Nos. 1:11-CV-00908-RB-LFG
                                                and 2:06-CR-01022-RB-1)
 JOSE MAURICIO VARELA,                               (D. New Mexico)

                 Defendant - Appellant.


               ORDER DENYING CERTIFICATE OF APPEALABILITY


Before MURPHY, EBEL, and HARTZ, Circuit Judges.


      Defendant Jose Mauricio Varela filed in the United States District Court for

the District of New Mexico a pro se motion under 28 U.S.C. § 2255 for relief

from his sentence. The district court denied the motion. Defendant now seeks a

certificate of appealability (COA) from this court to allow him to appeal the

district court’s decision. See 28 U.S.C. § 2253(c)(1)(B) (requiring COA to appeal

denial of § 2255 relief). We deny the application for a COA and dismiss the

appeal.

      Defendant was convicted by a jury of being a felon in possession of

multiple firearms. See 18 U.S.C. § 922(g)(1). We affirmed on direct appeal his

sentence of 120 months’ imprisonment, the statutory maximum. See United
States v. Varela, 586 F.3d 1249 (10th Cir. 2009). On October 11, 2011,

Defendant filed his § 2255 motion, which raised four claims for relief from his

sentence. Three claims alleged that his counsel had been constitutionally

ineffective in failing to pursue the contention that Defendant could not be

convicted of being a felon in possession of firearms under 18 U.S.C. § 922(g)

because his civil rights had been fully restored by the state of conviction. See

18 U.S.C. § 921(a)(20). Defendant argued that his counsel should have (1) moved

for dismissal of the indictment based on this argument, (2) introduced evidence at

trial to support this argument, and (3) moved for acquittal on the basis of this

argument. Defendant’s fourth claim was that his counsel was ineffective in

failing to argue at sentencing that he should be considered for a downward

departure from the Guidelines sentencing range under USSG § 5H. Defendant

urged that his attorney should have argued that his age, see USSG § 5H1.1, and

physical condition, see id. § 5H1.4, militated in favor of a sentence below the

statutory maximum, and that the failure to so argue prejudiced him. Defendant

seeks to appeal only the denial of his fourth claim.

      “A certificate of appealability may issue . . . only if the applicant has made

a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). “Where a district court has rejected the constitutional claims on the

merits,” the applicant “must demonstrate that reasonable jurists would find the

district court’s assessment of the constitutional claims debatable or wrong.”

                                         -2-
Slack v. McDaniel, 529 U.S. 473, 484 (2000). Defendant has failed to meet that

standard.

      To establish a claim of ineffective assistance of counsel, Defendant first

had the burden of overcoming “a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance,” Strickland v.

Washington, 466 U.S. 668, 689 (1984), by demonstrating that his counsel’s

performance fell below “an objective standard of reasonableness,” id. at 688.

Second, Defendant had to demonstrate “that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Id at 694.

      The magistrate judge issued a well-reasoned and thorough opinion

demonstrating that Defendant could not show either that his attorney’s

performance was constitutionally deficient or that raising the suggested departure

grounds would have led to a different sentence. The magistrate judge pointed out

that the 2005 Sentencing Guidelines (which applied to Defendant’s sentencing)

said that age “is not ordinarily relevant in determining whether a departure is

warranted,” USSG § 5H1.1 (2005), and that “[p]hysical condition or appearance,

including physique, is not ordinarily relevant in determining whether a departure

may be warranted,” id. § 5H1.4. Defendant therefore had to show that his age and

physical condition were so unique or exceptional that they would have justified a

downward departure in the face of policy statements discouraging reliance on

                                         -3-
such factors. See id. § 5K2.0 cmt. n.3(C) (2005); Koon v. United States, 518

U.S. 81, 95 (1996) (“discouraged factors . . . should be relied upon only in

exceptional cases” (internal quotation marks omitted)). The magistrate judge

noted that 60 is not a sufficient age to warrant a downward departure and that

Defendant’s spinal stenosis, back surgery, and disc fusion are not that uncommon

and could be accommodated in prison. Although Defendant apparently appeared

at sentencing in a wheelchair, the PSR did not include a mention of Defendant’s

using a wheelchair when it recited his medical problems. The magistrate judge

also readily distinguished cases cited by Defendant in which the defendant had

received a downward departure. The findings were adopted by the district judge,

who had originally sentenced Defendant.

      Defendant’s application for a COA repeats the arguments urged below. We

are not convinced that reasonable jurists could debate the district judge’s decision

that Defendant’s departure arguments would have been very unlikely to succeed

in obtaining a lower sentence had they been raised at his sentencing hearing. We

note in particular that Defendant’s guideline sentencing range would have been

188 to 235 months’ imprisonment if not for the statutory maximum of 10 years,

see Varela, 586 F.3d at 1251, making any further sentence reduction unlikely.

We see even less justification for disturbing the district judge’s conclusion that it

was well within the bounds of counsel’s reasonable professional judgment to




                                          -4-
choose not to raise these particular departure grounds in the face of sentencing

policy statements that discouraged the use of such factors in sentencing.

      Because Defendant fails to raise any claim that reasonable jurists would

find debatable, we DENY the application for a COA and DISMISS the appeal.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




                                         -5-
