                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          FEB 23 2000
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERIA,

          Plaintiff-Appellee,
                                                        No. 99-4158
 v.
                                                  (D.C. No. 99-CV-79-W)
                                                         (D. Utah)
 RAUL RAMIREZ-ESPINOZA,

          Respondent-Appellee.


                                ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.


      Repondent-Appellee Raul Ramirez-Espinoza (“Espinoza”) pled guilty to the

charge of illegal reentry of a deported alien in violation of 8 U.S.C. § 1326 on

May 21, 1998. On August 8, 1998, Espinoza was sentenced to seventy-seven

months in prison. Espinoza filed a pro se petition under 28 U.S.C. § 2255 on

February 10, 1999, to vacate, set aside, or correct the sentence imposed upon him.



      *
        After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
Order and Judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
In his petition, Espinoza argued ineffective assistance of counsel for (1) failing to

move for a downward departure based on the fact that Espinoza consented not to

contest deportation; and (2) failing to move for a three-point downward

adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1. The matter

was referred to a magistrate judge, who entered a published report and

recommendation on June 29, 1999 and a supplemental report and recommendation

on July 7, 1999.

      Espinoza filed a pro se notice of appeal from the magistrate judge’s report

and recommendation on July 19, 1999; however, the parties had not consented to

final disposition by a magistrate judge. On August 10, 1999, the district court

entered an order adopting the magistrate’s recommendation and supplemental

recommendation, and denying the motion under § 2255. Although Espinoza’s

notice of appeal was filed prior to the district court’s order, this court has

jurisdiction over the petition because Espinoza filed a timely “memorandum of

jurisdiction,” which we may construe as the functional equivalent of a notice of

appeal. See Smith v. Barry, 502 U.S. 244, 248-49 (1992) (“If a document filed

within the time specified by Rule 4 gives the notice required by Rule 3, it is

effective as a notice of appeal.”). Espinoza’s memorandum of jurisdiction is

deemed filed as of August 26, 1999, the date on the certificate of service, which

was within the sixty-day filing deadline. See Houston v. Lock, 487 U.S. 266,


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275-76 (1988) (stating that an inmate’s document is considered filed when turned

over to prison officials for mailing).

      Because Espinoza filed his § 2255 petition on February 10, 1999, the

Antiterrorism and Effective Death Penalty Act (“AEDPA”) provision requiring a

certificate of appealability applies to Espinoza’s appeal. See 28 U.S.C. § 2253.

Although the district court did not act on the issue of a certificate of

appealability, the notice of appeal is deemed denied pursuant to the General Order

of October 1, 1996. See Tenth Circuit Emergency General Order issued October

1, 1996.

      Espinoza now appeals the district court’s order, arguing that his seventy-

seven month sentence was illegal because, under 8 U.S.C. § 1326(a), the

maximum sentence is two years. Espinoza’s sentence, however, was enhanced

pursuant to 8 U.S.C. § 1326(b)(2). He was served with notice of the enhancement

and pled guilty after receiving that notice. Therefore, finding no substantial

showing of the denial of an important federal right or any other reason justifying

further proceedings, we hereby deny a certificate of appealability.

      The mandate shall issue forthwith.

                                         ENTERED FOR THE COURT

                                         David M. Ebel
                                         Circuit Judge



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