                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                      UNITED STATES COURT OF APPEALS October 4, 2013
                                                                 Elisabeth A. Shumaker
                                   TENTH CIRCUIT                     Clerk of Court



 UNITED STATES OF AMERICA,

                 Plaintiff-Appellee,                      No. 13-6102
          v.                                             (W.D. of Okla.)
 FERNANDO DE LOERA-                            (D.C. Nos. 5:13-CV-00052-C and
 HERNANDEZ,                                          5:10-CR-00378-C-1)

                 Defendant-Appellant.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.


      Fernando De Loera-Hernandez seeks a certificate of appealability (COA) to

appeal the district court’s denial of his motion to vacate, set aside, or correct his

sentence. Exercising jurisdiction under 28 U.S.C. § 1291, we DENY the

application for a COA and DISMISS the appeal.

      De Loera-Hernandez pleaded guilty to unlawfully reentering the United

States in violation of 8 U.S.C. § 1326. The district court imposed a sentence of

70 months, which De Loera-Hernandez appealed to this court and we affirmed.

United States v. De Loera-Hernandez, 458 F. App’x 779, 780 (10th Cir. 2012).


      *
         This order is not binding precedent except under the doctrines of law of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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Subsequently, De Loera-Hernandez, proceeding pro se, filed a motion under 28

U.S.C. § 2255 to vacate, set aside, or correct his sentence, arguing his sentence is

unreasonable and that he received ineffective assistance of counsel. The district

court denied his motion, and he seeks a COA to appeal to this court.

                                     Analysis

      The Antiterrorism and Effective Death Penalty Act (AEDPA) requires a

petitioner to obtain a COA before he can appeal denial of a § 2255 motion. 28

U.S.C. § 2253(c)(1)(B). A COA requires the applicant to make a “substantial

showing of the denial of a constitutional right.” § 2253(c)(2).

      Here, De Loera-Hernandez argues his constitutional rights were denied

because his sentence is substantively unreasonable and he received ineffective

assistance of counsel.

      A.     Substantive Reasonableness

      De Loera-Hernandez previously challenged the substantive reasonableness

of his sentence on direct appeal. We held that the “record supports the district

court’s sentencing determination as substantively reasonable.” De Loera-

Hernandez, 458 F. App’x at 780. As a result, this issue has been decided, and the

district court rightly declined to reexamine it in the context of De Loera-

Hernandez’s § 2255 motion.




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      B.     Assistance of Counsel

      De Loera-Hernandez also argues that he received ineffective assistance of

counsel. He raises four alleged errors.

      First, he contends his attorney failed to timely secure the presentence

report. Federal Rule of Criminal Procedure 32(e)(2) provides that a defendant

should receive the presentence report 35 days before sentencing, but De Loera-

Hernandez did not receive his presentence report until the day of his sentencing

hearing. The court recessed to allow him, his attorney, and an interpreter to

review it. When court resumed, De Loera-Hernandez did not object to the

report’s untimely delivery.

      As the district court correctly identified, this court has held that failure to

timely object to a violation of Rule 32(e)(2) constitutes waiver and prevents the

defendant from raising the issue on appeal. United States v. Jones, 80 F.3d 436,

438 (10th Cir. 1996).

      Even if De Loera-Hernandez had not waived this argument, it would not

merit granting a COA. To prevail, the defendant must show that 1) his counsel’s

performance fell below an objective standard of reasonableness and 2) “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” United States v. Rushin, 642 F.3d

1299, 1302 (10th Cir. 2011) (quoting Strickland v. Washington, 466 U.S. 668

(1984)). De Loera-Hernandez does not make any attempt to establish that, if his

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counsel had given him more time to review the report, the result of the proceeding

would have been different. Although he suggests there were errors in the report,

he does not explain what those errors were or argue that correcting them would

have affected the court’s decision.

      Second, De Loera-Hernandez argues that his attorney failed to present

evidence of his family situation, which De Loera-Hernandez believes would have

mitigated his sentence. For the same reasons as the district court, we conclude

his attorney did, in fact, present this type of evidence and that the court

considered it before issuing a sentence. Therefore, we cannot conclude that his

attorney erred in this regard at all, let alone that such error resulted in prejudice.

      Third, De Loera-Hernandez argues the court failed to consider disparities

between his sentence and those of prisoners in fast-track districts. Although he

may be presenting this argument to suggest that his sentence is substantively

unreasonable, we have previously decided his sentence is reasonable and need not

reconsider here. De Loera-Hernandez, 458 F. App’x at 780.

      Because De Loera-Hernandez is a pro se defendant, however, we construe

his filings liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

Therefore, we consider this argument in the context of De Loera-Hernandez’s

ineffective assistance of counsel claim, which has not previously been decided.

      The district court was not persuaded that there was a disparity between De

Loera-Hernandez’s sentence and the sentence he might have received in a fast-

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track district because De Loera-Hernandez failed to establish that he would have

been eligible for a fast-track program in another district.

      De Loera-Hernandez now seeks to establish eligibility by identifying a

defendant charged with the same crime in another district who qualified for fast-

track treatment. See United States v. Lopez-Macias, 661 F.3d 485, 494 (10th Cir.

2011). But, again, De Loera-Hernandez fails to show a reasonable probability

that, if his attorney had argued this point, the result of the proceeding would have

been different. Sentencing disparities are one part of a multi-factor analysis

under 18 U.S.C. § 3353. Further, the district court already decreased De Loera-

Hernandez’s total offense level due to his acceptance of responsibility and issued

the minimum sentence permitted by the Guidelines. Therefore, De Loera-

Hernandez has not established a reasonable probability that the outcome would

have been different but for his attorney’s alleged error.

      Fourth, De Loera-Hernandez argues his counsel failed to fully develop

issues raised in his direct appeal, which resulted in this court’s decision to affirm

the sentence. But De Loera-Hernandez again fails to suggest that, had his counsel

more fully fleshed out a particular argument, it would have likely persuaded this

court to reverse the sentence.

                                    Conclusion

      De Loera-Hernandez has failed to make a substantial showing of the denial

of a constitutional right, and we DENY his request for a COA and DISMISS the

                                          -5-
appeal. Further, we DENY his request to proceed in forma pauperis and order

him to pay the full amount of the filing fee.


                                        ENTERED FOR THE COURT,

                                        Timothy M. Tymkovich
                                        Circuit Judge




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