                            UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53




            United States Court of Appeals
                              For the Seventh Circuit
                              Chicago, Illinois 60604

                              Submitted June 23, 2005*
                               Decided July 19, 2005

                                        Before

                    Hon. ILANA DIAMOND ROVNER, Circuit Judge

                    Hon. DIANE P. WOOD, Circuit Judge

                    Hon. ANN CLAIRE WILLIAMS, Circuit Judge


No. 04-3109

FELIPE RANGEL,                                   Appeal from the United States District
            Petitioner-Appellant,                Court for the Northern District
                                                 of Indiana, South Bend Division.
      v.
                                                 No. 3:04 CV 0138 AS
UNITED STATES OF AMERICA,
           Respondent-Appellee.                  Allen Sharp, Judge.


                                     ORDER

       Felipe Rangel and his cousin, Jose Garcia, were indicted on six counts of
distributing cocaine in violation of 21 U.S.C. § 841(a)(1). Garcia pleaded guilty and
agreed to cooperate with the government. At Rangel’s trial, Garcia testified that
Rangel provided the cocaine that Garcia had delivered to undercover agents on the six
occasions alleged in the indictment. The jury returned a finding of guilt on two of the
six counts, which happened to be the only two deals during which Rangel was actually
present. The court then sentenced him to 63 months’ imprisonment on each count, to
run concurrently. Despite Rangel’s acquittal on the four remaining counts, the court


      *
       After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See Fed. R. App. P. 34(a)(2).
No. 99-4292                                                                        Page 2



included the drug quantities associated with them as relevant conduct in the
calculation of his guideline range. As a result, his total sentence was the same as if he
had been convicted as charged. See U.S.S.G. § 1B1.3. Rangel appealed, and we
affirmed in all respects. See United States v. Rangel, 350 F.3d 648 (7th Cir. 2003).

       Rangel returned to the district court with a motion for collateral relief under 28
U.S.C. § 2255. The district court denied the motion in an order that principally
discussed the effectiveness of defense counsel in the sentencing process. The court then
granted a certificate of appealability in which it identified five issues: (1) whether the
sentencing court violated Fed. R. Crim. P. 32(i) by neglecting to ask Rangel whether
he had read the presentence report (PSR), (2) whether this alleged violation of the
rules violated Rangel’s due process rights, insofar as it prevented him from objecting
to the guidelines computations in the PSR, (3) whether appellate counsel was
ineffective for failing to argue that Rule 32(i) was violated, (4) whether trial counsel
rendered ineffective assistance by failing to object during closing argument to the
prosecutor’s statements that Garcia was a truthful witness and that Rangel “smoked
cocaine,” and (5) whether appellate counsel rendered ineffective assistance by failing
to argue on appeal that the prosecutor altered certain stipulated trial exhibits and
then tried to slip them to the jury.

        Before discussing any of these points, there is a preliminary issue that we must
highlight, namely, the standard for granting certificates of appealability. The
governing statute states that “[a] certificate of appealability may issue . . . only if the
applicant has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). Before the statute was amended in 1996, the vehicle for an appeal
was a certificate of probable cause, which issued upon a “substantial showing of the
denial of a federal right.” See Barefoot v. Estelle, 463 U.S. 880, 893 (1983) (emphasis
added). There is a significant difference between the denial of a federal right, which
might be a statutory right, and the denial of a constitutional right. Had the district
court applied the correct standard, it would not have certified the first of the five
issues, which concerns only a violation of the criminal rules. We therefore vacate the
certificate of appealability insofar as it includes only the rule violation, and move on
to the remaining four points, which do raise constitutional issues.

       The second and third issues recast the alleged violation of Rule 32(i) as a due
process claim and an ineffectiveness of trial counsel claim, but the arguments look no
better as rearranged. Rangel argues that the sentencing court’s failure to ask him
directly whether he had read the PSR, had discussed it with his lawyer, and wished
to challenge it, prevented him from asking for a “minimal or minor participant”
reduction and a “safety valve” reduction under the Sentencing Guidelines. See
U.S.S.G. §§ 3B1.2, 5C1.2, 2D1.1(b)(7). In fact, however, trial counsel asked the court
No. 99-4292                                                                      Page 3



for the mitigating role adjustment, and it was clear that Rangel was not entitled to the
safety valve because he did not reveal his sources to the government. Under the
circumstances, it is plain that his due process rights were not violated. It is equally
clear that he was not prejudiced by anything his counsel did or did not do, especially
in light of the undisputed fact that counsel reviewed the contents of the PSR with
Rangel by telephone before the sentencing.

       Rangel next argues that his trial counsel rendered ineffective assistance when
he failed to object to certain parts of the prosecutor’s closing argument. The prosecutor
acknowledged that drug dealers are not model citizens, but he went on to say:

             But that does not mean that when Tony Garcia stood up there and said
      my source of supply was the defendant, my cousin, Felipe Rangel, that he was
      not telling the truth.

            In fact, ladies and gentlemen, he was telling you the truth. He was his
      source of supply in all of these deals, just like he said he was.

              Well, how do you know that Tony Garcia was telling the truth?

             Well, we had introduced evidence on the transcripts showing Tony Garcia
      refers time and again in those transcripts to his cousin.

The prosecutor then suggested that Garcia went from being a person Rangel “hung
out” with to someone who was essentially an employee. After these statements,
Rangel’s attorney argued repeatedly to the jury that Garcia was a liar and had testified
falsely because of his deal with the government. In its final charge, the district court
instructed the jury that “closing arguments and other statements of counsel should be
disregarded to the extent that they are not supported by the evidence,” that it was up
to the jury to decide “whether the testimony of each witness is truthful and accurate,”
and that the jurors should consider “with caution and great care” the testimony of a
witness who receives benefits from the government.

        Taken in context, one could conclude that the prosecutor was commenting on the
evidence, not expressing his personal belief in Garcia’s credibility. See United States
v. Clark, 227 F.3d 874, 884-86 (7th Cir. 2000). Counsel’s decision not to object may well
have been a reasonable strategic choice at that moment in the trial. Even if it was not,
however, there is no way that the prosecutor’s remarks could have deprived Rangel of
a fair trial and thus prejudiced him. The defense rebutted the prosecutor’s comments
about Garcia, and the court gave appropriate instructions, which we presume the jury
followed. See United States v. Puckett, 405 F.3d 589, 599 (7th Cir. 2005); United
No. 99-4292                                                                      Page 4



States v. Sandoval, 347 F.3d 627, 631 (7th Cir. 2003).

       Rangel also contends that his appellate counsel provided ineffective assistance
by failing to argue that the prosecutor engaged in misconduct by distributing to the
jurors copies of transcripts of telephone conversations that had been altered after a
stipulation with defense counsel. The stipulated copies indicated that various dates
were “unknown,” while the copies initially distributed to the jury had the dates filled
in. Although this could have caused problems had it gone undetected, in fact trial
counsel objected immediately, the transcripts with dates were collected right away, and
the jurors never had a chance to review them. Outside the presence of the jury, the
prosecutor tried to justify the alterations, but the court threatened a mistrial unless
he used the exact form of the transcript to which the defense had stipulated. He did
as ordered, and that was the end of the story. It was well within the range of
reasonable appellate representation to conclude that there was no issue worthy of
appeal in this sequence of events. See Lee v. Davis, 328 F.3d 896, 901 (7th Cir. 2003).

       Finally, Rangel argues that his sentence is inconsistent with United States v.
Booker, 125 S.Ct. 738 (2005). Not only is this issue beyond the scope of the certificate
of appealability, but it is foreclosed by our decision in McReynolds v. United States,
397 F.3d 479, 481 (7th Cir. 2005), which held that Booker does not apply retroactively
to criminal cases like Rangel’s that became final before Booker was handed down
(January 12, 2005).

      We AFFIRM the judgment of the district court.
