                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                           April 20, 2006
                                 TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                           Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 05-2144
        v.                                            (D. New Mexico)
 JOSE PABLO GARCIA,                           (D.C. Nos. CV-05-0240 JP/WDS;
                                                       CR-04-803 JP)
               Defendant-Appellant.




                                      ORDER


Before HENRY, BRISCOE, and O’BRIEN, Circuit Judges.


      Jose Pablo Garcia, a federal prisoner proceeding pro se, seeks a certificate

of appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2255

motion to vacate, set aside, or correct his sentence. Mr. Garcia was convicted

after a guilty plea of unlawfully reentering the United States after a conviction of

an aggravated felony, a violation of 8 U.S.C. § 1326(a)(1), (2), and (b)(2). The

district court sentenced him to 46 months’ imprisonment.

      Mr. Garcia now argues that the district court’s reliance on a prior conviction

to enhance his sentence violated his Sixth Amendment rights under United States

v. Booker, 543 U.S. 220 (2005), Blakely v. Washington, 542 U.S. 296 (2004), and

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), because the government did
not allege the prior conviction in the indictment and did not submit to the jury the

issue of existence of the prior conviction.

      In order to obtain a COA, Mr. Garcia must make “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He may make this

showing by demonstrating that “‘reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.’” Miller-El v.

Cockrell, 537 U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484

(2000)).

      Mr. Garcia has not made the necessary showing. As the district court

observed, in Almendarez-Torres v. United States, 523 U.S. 224, 246-47 (1998), the

Supreme Court held that a prior conviction is not an element of a § 1326 unlawful

entry offense, and that, as a result, a prior conviction need not be alleged in the

indictment. The Supreme Court’s decisions in Booker, Blakely, and Apprendi

have not altered this principle. Indeed, this circuit had held post-Booker that the

existence and classification of prior convictions used to enhance a defendant’s

sentence need not be charged in the indictment and submitted to a jury. See

United States v. Moore, 401 F.3d 1220, 1224 (10th Cir. 2005) (“[W]e are bound by

existing precedent to hold that the Almendarez-Torres exception to the rule

announced in Apprendi and extended to the Guidelines in Booker remains good




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law . . . . We therefore conclude that the government need not charge the ‘fact’ of

a prior conviction in an indictment and submit it to a jury.”).

      Moreover, Mr. Garcia did not file a direct appeal and he may therefore not

pursue this claim in a § 2255 proceeding. See United States v. Cox , 83 F.3d 336,

341 (10th Cir. 1996) (stating that, when a petitioner “fails to raise an issue on

direct appeal, he is barred from raising the issue in a § 2255 proceeding, unless he

establishes either cause excusing the procedural default and prejudice resulting

from the error, or a fundamental miscarriage of justice if the claim is not

considered ”). Additionally, to the extent that his claim is based on Booker, we

note that that case was decided after Mr. Garia’s conviction became final and that

“Booke r does not apply retroactively on collateral review.”    United States v.

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

      Accordingly, we DENY Mr. Garcia’s application for a COA and DISMISS

this appeal.



                                  Entered for the Court,



                                  Robert H. Henry
                                  United States Circuit Judge




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