                                                                              FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                         UNITED STATES COURT OF APPEALS                   May 30, 2014
                                    TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                         Clerk of Court


 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,

 v.                                                          No. 13-6267
                                                     (D.C. No. 5:13-CV-00568-HE)
 JOSE ANGEL GONZALEZ-                                        (W.D. Okla.)
 GONDARILLA,

           Defendant - Appellant.


               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before HARTZ, McKAY, and MATHESON, Circuit Judges.


       Appellant, a federal prisoner proceeding pro se, seeks a certificate of appealability

to appeal the district court’s denial of his 28 U.S.C. § 2255 motion for habeas relief.

       Following a jury trial, Appellant was convicted of three drug-related offenses. He

was sentenced to a total of 100 months’ incarceration and four years of supervised

release. He did not file a direct appeal. Appellant claimed in his § 2255 motion that he

was denied the effective assistance of counsel because he did not receive, in the

calculation of his guideline sentence, a two-level reduction under USSG § 2D1.1(b)(16).


       *
         This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
This provision calls for a two-level reduction for defendants who meet all of the criteria

set forth in USSG § 5C1.2, the “safety valve” provision. Among other things, USSG §

5C1.2(a)(5) requires a defendant to “truthfully provide[] to the Government all

information and evidence the defendant has concerning the offense or offenses that were

part of the same course of conduct or of a common scheme or plan.” The district court

concluded Appellant was not entitled to this reduction because it was undisputed, based

on the government’s submissions and his attorney’s affidavit, that Appellant did not

cooperate with the government in this manner. The district court accordingly denied the

habeas petition.

       Our test for granting a certificate of appealability is not whether the district court’s

decision was correct, but whether reasonable jurists could debate whether it was correct.

Slack v. McDaniel, 529 U.S. 473, 484 (2000). After reviewing the pleadings and the

record on appeal, we conclude reasonable jurists would not debate the district court’s

judgment that Appellant did not cooperate with the prosecution and was accordingly

ineligible for safety-valve relief.

       In his application for a certificate of appealability, Appellant raises an additional

challenge to the calculation of his sentence. However, this issue was not raised in

Appellant’s § 2255 motion, and we will “adhere to our general rule against considering

issues for the first time on appeal.” United States v. Viera, 674 F.3d 1214, 1220 (10th

Cir. 2012).

       We DENY Appellant’s request for a certificate of appealability and DISMISS the

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appeal. Appellant’s motion to proceed in forma pauperis on appeal is GRANTED.

                                              ENTERED FOR THE COURT


                                              Monroe G. McKay
                                              Circuit Judge




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