                                                                           F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           MAY 11 2005
                                TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                        No. 04-2271
 v.                                              (D.C. Nos. CIV-04-72 and
                                                    CR-02-1860 MCA)
 YONI ORLANDO RIOS-ROMERO,                               (D.N.M.)

       Defendant - Appellant.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, O’BRIEN and TYMKOVICH, Circuit Judges.


      Yoni Orlando Rios-Romero, a federal inmate appearing pro se, seeks to

appeal from the denial of his 28 U.S.C. § 2255 motion to vacate, set aside or

correct his sentence. Because we determine that Mr. Rios-Romero has not made a

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

§ 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000), we deny a COA and

dismiss the appeal.

      The parties are familiar with the facts, and we need not restate them here.

Mr. Rios-Romero claims that his counsel was ineffective for failing to object to

certain convictions used to calculate his criminal history category. We do not
think that the magistrate judge’s conclusion that Mr. Rios-Romero had not met his

burden of demonstrating deficient performance or prejudice is reasonably

debatable. See Strickland v. Washington, 466 U.S. 668, 687 (1984). One

challenged conviction was in fact not used to calculate his criminal history, and

the other was apparently valid, notwithstanding Mr. Rios-Romero’s mere

assertion that it had been dropped.

      We DENY a COA and DISMISS the appeal.

                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




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