                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   May 15, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,                         No. 09-3023
                                                          (D. Kan.)
 v.                                         (D.C. Nos. 2:08-CV-02491-KHV and
                                                  2:06-CR-20050-KHV-2)
 JOSE J. ALVARADO-VALENCIA,

          Defendant - Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, BRISCOE, and HOLMES, Circuit Judges .



      Defendant-Appellant, Jose J. Alvarado-Valencia, appearing pro se, requests

a certificate of appealability (“COA”) to perfect his appeal from the district

court’s order that denied his motion to vacate, set aside, or correct his sentence

under 28 U.S.C. § 2255. We exercise jurisdiction under 28 U.S.C. § 1291.




      *
          After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this matter. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument. This Order is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
Reviewing Mr. Alvarado-Valencia’s filings liberally, 1 we conclude that Mr.

Alvarado-Valencia has failed to make a substantial showing of a denial of a

constitutional right. Accordingly, we DENY Mr. Alvarado-Valencia’s request for

a COA and DISMISS this matter.

                                  BACKGROUND

      Mr. Alvarado-Valencia pleaded guilty to multiple counts of drug possession

and distribution charges. He is currently serving a 220-month sentence. 2 After an

unsuccessful direct appeal, Mr. Alvarado-Valencia moved the district court for §

2255 relief, alleging that:

             (1) his sentence was not reasonable because the advisory
             guidelines range aggregated drug quantities for both charged and
             uncharged conduct; (2) his sentence was not reasonable because
             the advisory guidelines range included a firearms enhancement
             which was not charged in the indictment; (3) the Court erred by
             giving substantial weight to the guidelines; (4) his attorney was
             ineffective for failing to raise these three arguments; (5) his
             attorney was ineffective in failing to argue that because the
             guidelines do not include parole, his guidelines sentence is
             unreasonable; and (6) his attorney was ineffective in failing to
             argue that he was entitled to a lower sentence because the
             District of Kansas did not have a fast-track program for illegal
             aliens.

R., Vol. I, at 124 (Dist. Ct. Order, dated Oct. 28, 2008). The district court denied

      1
         Because Mr. Alvarado-Valencia is proceeding pro se, we review his
pleadings and filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21
(1972); Howard v. U.S. Bureau of Prisons, 487 F.3d 808, 815 (10th Cir. 2007).
      2
             Mr. Alvarado-Valencia initially was sentenced to 280 months’
imprisonment, but the district court reduced it to 220 months following the
retroactive changes to the crack cocaine Sentencing Guidelines. See U.S.
Sentencing Guidelines Manual (“U.S.S.G.”), app. C, amends. 706, 713.

                                         -2-
Mr. Alvarado-Valencia’s motion on all grounds. Subsequently, the district court

denied Mr. Alvarado-Valencia’s motion to reconsider and his request for a COA.

Mr. Alvarado-Valencia now requests a COA from this court.

                                     DISCUSSION

      Before filing an appeal, “a prisoner who was denied [§ 2255] relief in the

district court must first seek and obtain a COA . . . . This is a jurisdictional

prerequisite . . . .” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); see Fed. R.

App. P. 22(b)(1). A COA may only be issued if Mr. Alvarado-Valencia makes “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

To make the requisite showing, Mr. Alvarado-Valencia must “show 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.” Miller-El, 537 U.S. at 336 (alteration

and internal quotation marks omitted); Coppage v. McKune, 534 F.3d 1279, 1281

(10th Cir. 2008). To determine whether Mr. Alvarado-Valencia has satisfied his

burden, we undertake a “preliminary, though not definitive, consideration of the

[legal] framework.” Miller-El, 537 U.S. at 338. Mr. Alvarado-Valencia need not

demonstrate his appeal will succeed to be entitled to a COA; however, he must

“prove something more than the absence of frivolity or the existence of mere good

faith.” Id. (internal quotation marks omitted).

      Mr. Alvarado-Valencia contends that his sentence was procedurally

unreasonable because the district court erred in calculating his sentence by (1)

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considering drug quantities for uncharged conduct and (2) including a firearms

enhancement even though he was not charged with a firearms offense. 3 These

contentions apparently are predicated on the view that the district court, in

determining a defendant’s sentence, may consider only information related to a

defendant’s counts of conviction. This view is mistaken. 4

      Following the Supreme Court’s landmark decision in United States v.

Booker, 543 U.S. 220 (2005), which declared the mandatory Guidelines regime

unconstitutional, we have “routinely permitted a district court to enhance a

defendant’s sentence using uncharged conduct proven to the court by a

preponderance of the evidence.” United States v. Rodriguez-Felix, 450 F.3d

1117, 1131 (10th Cir. 2006); see United States v. Townley, 472 F.3d 1267, 1276

(10th Cir.2007) (“Appellant incorrectly argues that Booker error occurs any time


      3
             Mr. Alvarado-Valencia does not request a COA on the other issues
alleged in his § 2255 motion.
      4
              In addition to the reasons set forth in text, Mr. Alvarado-Valencia
also is mistaken to the extent that he relies on the Guidelines grouping provision,
U.S.S.G. § 3D1.2(d). As Mr. Alvarado-Valencia acknowledges, that provision by
its terms relates, inter alia, to the grouping of quantities of drugs arising from
counts of conviction. At issue here, however, is the grouping of drug quantities
arising from uncharged conduct, which is expressly governed by the relevant
conduct provisions of U.S.S.G. § 1B1.3. Therefore, we decline to grant Mr.
Alvarado-Valencia’s request that we instruct the district court “to follow §
3D1.2(d),” instead of § 1B1.3. Aplt. Op. Br. at 4. Mr. Alvarado-Valencia’s
somewhat puzzling request seems to reflect his overarching position that the
district court should only consider counts of conviction in its sentencing calculus.
For the reasons noted in the text, however, that position is completely lacking in
merit.


                                         -4-
a district court enhances a sentence based on facts not found by a jury. Rather,

after Booker, a district court is not precluded from relying on judge-found facts in

determining the applicable Guidelines range so long as the Guidelines are

considered as advisory rather than mandatory.”); see also United States v. Watts,

519 U.S. 148, 154 (1997) (holding that “a sentencing court may consider conduct

of which a defendant has been acquitted” as relevant conduct in calculating the

Guidelines sentence). Accordingly, the district court did not err in considering

Mr. Alvarado-Valencia’s uncharged conduct in computing his Guidelines

sentencing range. His sentence is thus procedurally reasonable. Mr. Alvarado-

Valencia has failed to make a substantial showing of a denial of a constitutional

right. 5

           5
              It is possible to construe Mr. Alvarado-Valencia’s request for a COA
as asserting a claim that the Sentencing Commission exceeded its authority under
28 U.S.C. § 994(b)(1) by including an enhancement for his uncharged possession
of a firearm. Giving it a liberal interpretation, the district court had found that
Mr. Alvarado-Valencia’s § 2255 motion presented such a contention. See R., Vol.
I, at 127-28. Under § 994(b)(1), the Sentencing Commission “shall, for each
category of offense involving each category of defendant, establish a sentencing
range that is consistent with all pertinent provisions of title 18, United States
Code.” 28 U.S.C. § 994(b)(1) (emphasis added). Mr. Alvarado-Valencia
contends that insofar as the Sentencing Commission’s Guidelines ranges for drug
offenses permit the consideration of uncharged firearms offenses, they are
inconsistent with title 18, because firearms offenses “must be charged under [18
U.S.C.] § 924(c).” Aplt. Op. Br. at 4.

       Mr. Alvarado-Valencia does not frame this contention in terms of a
violation of a specific constitutional right. However, assuming arguendo that his
contention implicates his constitutional rights, we still would conclude that it
lacks merit. In prescribing sentencing enhancements like the firearms
                                                                      (continued...)

                                         -5-
                                  CONCLUSION

      For the foregoing reasons, we DENY Mr. Alvarado-Valencia’s request for a




      5
        (...continued)
enhancement, the Sentencing Commission has sought to take into account factors
that are relevant to a defendant’s culpability for the instant offense of conviction.
See Witte v. United States, 515 U.S. 389, 403 (1995) (noting that “[t]he relevant
conduct provisions of the Sentencing Guidelines . . . are sentencing enhancement
regimes evincing the judgment that a particular offense should receive a more
serious sentence within the authorized range if it was either accompanied by or
preceded by additional criminal activity”). And the district court may find the
presence of those factors by a preponderance of the evidence. E.g., Townley, 472
F.3d at 1276. As a matter of logic and law, this endeavor is not inconsistent with
Congress’s decision to establish distinct crimes for conduct, which carry their
own statutory criminal penalties and ordinarily require a jury finding beyond a
reasonable doubt—even though the Guidelines enhancements may be based upon
the same conduct. Compare Witte, 515 U.S. at 403 (rejecting double jeopardy
challenge to indictment charging cocaine offenses that was based on assertion that
cocaine conduct was previously used as uncharged relevant conduct in prior
sentencing for marijuana conviction), with Watts, 519 U.S. at 158 (Scalia, J.,
concurring) (asserting that the Sentencing Commission would not be acting in a
manner consistent with title 18’s provisions, as § 994(b)(1) requires, if it sought
to bar consideration of acquitted conduct (and presumably uncharged conduct) in
determining sentencing enhancements). Moreover, Mr. Alvarado-Valencia’s
contention bears no resemblance to situations where we actually have grappled
with the implications of § 994(b)(1). See United States v. McCary, 58 F.3d 521,
523 (10th Cir. 1995) (wrestling with “apparent inconsistencies” between a
Guidelines provision that appeared to call for the imposition of concurrent
sentences and a title 18 provision that required the imposition of consecutive
sentences). At bottom, the grievance underlying Mr. Alvarado-Valencia’s §
994(b)(1) argument mirrors the grievance underlying Mr. Alvarado-Valencia’s
other arguments: Mr. Alvarado-Valencia does not feel that he should suffer an
adverse sentencing consequence due to his uncharged conduct—here, possession
of a firearm—because he was not convicted of a separate offense related to that
conduct (i.e., a firearms offense). Under well-established sentencing principles,
however, this grievance simply cannot be redressed.

                                         -6-
COA and DISMISS this matter.

                               ENTERED FOR THE COURT

                               Jerome A. Holmes
                               Circuit Judge




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