                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           APR 22 2005
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,
               Plaintiff - Appellee,                      No. 04-2327
 v.                                                 (D.C. No. 04-CV-1152)
 AURELIO PINELA-GUTIERREZ,                               (D. New Mex.)
               Defendant - Appellant.


                                       ORDER *


Before EBEL, McKAY, and HENRY, Circuit Judges.



       After examining the briefs and 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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

       This is a pro se 28 U.S.C. § 2255 prisoner appeal. Defendant pleaded

guilty to possession with intent to distribute fifty kilograms or more of marijuana

in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). He was sentenced to thirty-

three months’ incarceration followed by a three-year term of supervised release.



       This order is not binding precedent, except under the doctrines of law of
       *

the case, res judicata, and collateral estoppel.
Defendant did not appeal his conviction or sentence.

      In his § 2255 motion, Defendant claimed that his counsel was ineffective

because he failed to inform Defendant that his sentence could be increased

because of his prior convictions. A claim for ineffective assistance of counsel

requires Defendant to show that (1) his attorney’s “performance was deficient . . .

[in that he] made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed by the Sixth Amendment,” and (2) “the deficient

performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668,

687 (1984). A court need not address both prongs of the Strickland test “if

[Defendant] fails to make a sufficient showing of one.” Cooks v. Ward, 165 F.3d

1283, 1292-93 (10th Cir. 1998). The district court denied Defendant’s motion

holding that he failed to demonstrate prejudice as a result of his attorney’s

allegedly deficient performance. In addition, the district court denied

Defendant’s request for a certificate of appealability.

      Defendant has renewed his request for a certificate of appealability with

this court. In order for us to grant this request, Defendant must make a

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

2253(c)(2) (2000). To do so, he must demonstrate “that reasonable jurists could

debate whether (or, for that matter, agree that) the [motion] should have been

resolved in a different manner or that the issues presented were adequate to


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deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (quotations omitted).

      Defendant’s argument on appeal is exactly the same as that raised in the

district court – that his attorney was constitutionally infirm because he failed to

advise Defendant that his prior convictions could increase his sentence. The

district court, relying on Laycock v. New Mexico, 880 F.2d 1184, 1187 (10th Cir.

1989), concluded that Defendant failed to establish prejudice because his

allegations did not demonstrate a reasonable probability that he would have not

pleaded guilty and insisted on going to trial.

      We have carefully reviewed the briefs, the district court’s disposition, the

record on appeal, and the relevant law. For substantially the same reasons as

articulated by the district court, we agree that Defendant’s allegations do not

establish “a reasonable probability that, but for counsel’s [alleged] errors, he

would not have pleaded guilty and would have insisted on going to trial.”

Laycock, 880 F.2d at 1187. The Slack v. McDaniel standard has not been met.

      We DENY Defendant’s request for a certificate of appealability and

DISMISS this appeal.

                                                 Entered for the Court



                                                 Monroe G. McKay
                                                 Circuit Judge

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