     Case: 19-40092      Document: 00515403285         Page: 1    Date Filed: 05/04/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                                                                  FILED
                                      No. 19-40092                             May 4, 2020
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


                                                 Plaintiff-Appellee

v.

VICTOR HUGO GONZALEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 5:16-CV-324
                              USDC No. 5:15-CR-852-1


Before DENNIS, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Victor Hugo Gonzalez, federal prisoner # 66219-279, pleaded guilty to
possession with intent to distribute methamphetamine in violation of 21 U.S.C.
§ 841(a) and § 841(b)(1)(A) and was sentenced to 188 months of imprisonment
and five years of supervised release. He moves for a certificate of appealability
(COA) to appeal the denial of his 28 U.S.C. § 2255 motion. Gonzalez argues




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 19-40092     Document: 00515403285     Page: 2   Date Filed: 05/04/2020


                                  No. 19-40092

that his attorney was ineffective for failing to object to the drug quantity used
to calculate his sentence.
      To obtain a COA, a movant must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where a district court
has denied claims on the merits, a movant must show “that jurists of reason
could disagree with the district court’s resolution of his constitutional claims
or that jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003). Gonzalez has not met this standard with respect to his ineffective
assistance claim and has therefore not shown an entitlement to a COA.
      We construe his motion for a COA with respect to the district court’s
denial of an evidentiary hearing as a direct appeal of that issue. See Norman
v. Stephens, 817 F.3d 226, 234 (5th Cir. 2016). Gonzalez did not file a motion
or make a request for an evidentiary hearing in his § 2255 proceedings in the
district court, nor did he complain of the lack of a hearing. Because Gonzalez’s
argument concerning the lack of an evidentiary hearing in his § 2255
proceeding is raised for the first time on appeal, we will not consider it. United
States v. Scruggs, 691 F.3d 660, 666 (5th Cir. 2012). Gonzalez’s motion for
leave to proceed in forma pauperis (IFP) on appeal is denied.
      COA DENIED; AFFIRMED; IFP DENIED.




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