                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                             FOR THE TENTH CIRCUIT                         August 30, 2018
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,
                                                              No. 18-8040
v.                                                (D.C. Nos. 2:17-CV-00047-NDF and
                                                        2:13-CR-00099-NDF-1)
JUSTIN J. SADLER,                                              (D. Wyo.)

      Defendant - Appellant.
                      _________________________________

           ORDER DENYING A CERTIFICATE OF APPEALABILITY
                   _________________________________

Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
                  _________________________________

       Defendant Justin Sadler assaulted his former girlfriend while possessing a

firearm. See United States v. Sadler, 642 F. App’x 834, 835–36 (10th Cir. 2016).

Wyoming authorities charged him with first-degree sexual assault, kidnapping, and

aggravated assault. See Sadler v. State, 375 P.3d 728, 729 (Wyo. 2016). Before being

tried on the state charges, Defendant was convicted in federal court of being a felon in

possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). See Sadler,

642 F. App’x at 835. He was sentenced to 120 months’ imprisonment for his federal

offense, and we affirmed the validity of his sentence on direct appeal. Id. After being

sentenced in federal court, he was acquitted in state court on two of the charges and

convicted on only the aggravated-assault charge. See Sadler v. State, 357 P3d at 730.

       Defendant then moved for relief under 28 U.S.C. § 2255 in the United States
District Court for the District of Wyoming. The district court denied the motion and

declined to grant a certificate of appealability (COA). Defendant now requests a COA

from this court. See 28 U.S.C. § 2253(c)(1)(B) (requiring COA to appeal denial of relief

under § 2255). He complains that the district court rejected his request to take judicial

notice of testimony in the state trial and should have granted him relief on the grounds

that (1) his federal counsel was ineffective because he was facing disciplinary charges

and (2) his sentence was improper because the court considered the kidnapping of which

he was later acquitted. We deny a COA and dismiss the appeal.

       A COA will issue “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a

demonstration that . . . includes showing that reasonable jurists could debate whether (or,

for that matter, agree that) the petition should have been resolved in a different manner or

that the issues presented were adequate to deserve encouragement to proceed further.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). In other

words, the applicant must show that the district court’s resolution of the constitutional

claim was either “debatable or wrong.” Id.

       Defendant first claims that the district court erred by refusing to take judicial

notice of testimony at his state trial. But the district court correctly ruled that testimony

offered for its truth is not the proper subject of judicial notice. See Fed. R. Evid. 201(b).

       Defendant next claims that his counsel was ineffective because his attorney was

facing disciplinary actions during the criminal case. Before trial the Wyoming Supreme

Court recommended that counsel be fined and publicly censured for violating


                                               2
professional-conduct rules, and he was eventually disbarred after Defendant was

sentenced in federal court. We have held, however, that an attorney’s performance is per

se defective in this context only when the attorney was not licensed to practice law while

representing the defendant (and not always even then). See United States v. Bergman,

599 F.3d 1142, 1147–48 (10th Cir. 2010).

       Because Defendant’s attorney was licensed when representing Defendant,

counsel’s effectiveness is evaluated under the factors articulated in Strickland v.

Washington, 466 U.S. 668, 689 (1984). See United States v. Stevens, 978 F.2d 565, 568

(10th Cir. 1992) (attorney who is disbarred without notice is not per se ineffective and his

performance must be analyzed under Strickland). Under Strickland a defendant first has

the burden of overcoming “a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance,” 466 U.S. at 689, by demonstrating that

his counsel’s performance “fell below an objective standard of reasonableness,” id. at

688. Second, a defendant must demonstrate “that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694. In this court, Defendant has not pointed to any deficient

performance by his counsel, much less any prejudice. Defendant has not persuaded us

that a reasonable jurist could debate the district court’s denial of this claim.

       Finally, Defendant claims that he should be resentenced because the federal court

enhanced his sentence under USSG. §§ 2K2.1(c)(1)–(c)(1)(a) and 2X1.1(a) for

kidnapping, see Sadler, 642 F. App’x at 839, but he was later acquitted on his state

kidnapping charge. This court has held, however, that acquitted conduct can be


                                               3
considered at sentencing. See United States v. Lujan, 603 F.3d 850, 856 (10th Cir. 2010)

(“[E]ven evidence tending to prove that the defendant engaged in criminal conduct for

which he has already been prosecuted and acquitted may be introduced at sentencing in a

trial charging a separate offense.”); see also § 2K2.1 cmt. n.14(C) (a court may consider

“any Federal, state, or local offense . . . , regardless of whether a criminal charge was

brought, or a conviction obtained” (emphasis added)). No reasonable jurist could debate

the district court’s rejection of this claim.

       We DENY a COA and DISMISS the appeal. We GRANT Defendant’s motion to

proceed in forma pauperis.


                                                Entered for the Court


                                                Harris L Hartz
                                                Circuit Judge




                                                4
