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

                            FOR THE TENTH CIRCUIT                             April 16, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                           No. 18-1191
                                                    (D.C. No. 1:17-CV-01921-CMA
 JORGE ALFREDO GUIJARRO,                              and 1:12-CR-00038-CMA-4)
                                                               (D. Colo.)
       Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before PHILLIPS, McKAY, and O’BRIEN, Circuit Judges.
                   _________________________________

      Jorge Alfredo Guijarro, a federal prisoner proceeding pro se1, seeks a

certificate of appealability (COA) to appeal the district court’s denial of his 28

U.S.C. § 2255 motion. Exercising jurisdiction under 28 U.S.C. § 1291, we deny Mr.

Guijarro’s motion for a COA and dismiss this appeal.



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
      1
       We construe Mr. Guijarro’s pleadings liberally but we will not act as his
advocate. United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009).
                                  BACKGROUND

      On February 2, 2016, Mr. Guijarro pleaded guilty to conspiracy to distribute

cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A)(ii)(II). As part

of his plea agreement, Mr. Guijarro waived his right to appeal and to collaterally

attack his conviction or sentence. The waiver, however, contained an exception. The

exception permits Mr. Guijarro to challenge his conviction on the ground that he was

denied effective assistance of counsel.

      On May 31, 2016, the district court held Mr. Guijarro’s sentencing hearing. At

the hearing, the court calculated Mr. Guijarro’s base offense level as 33 and his

criminal history category as II. Mr. Guijarro’s corresponding advisory-guideline

sentencing range was 151 to 188 months of imprisonment. The court, however,

sentenced Mr. Guijarro to 120-months imprisonment after granting the government’s

U.S.S.G. § 5K1.1 motion for a downward departure.2

      On August 9, 2017, Mr. Guijarro filed a 28 U.S.C. § 2255 motion in the

district court requesting that his sentence be vacated. In support, Mr. Guijarro made

two arguments. First, Mr. Guijarro claimed that the sentencing court miscalculated

his base offense level. Second, Mr. Guijarro claimed that he was denied effective

assistance of counsel. Regarding his IAC claim, Mr. Guijarro argued that his counsel



      2
        Despite the appellate waiver, Mr. Guijarro filed a direct appeal. He then
moved to voluntarily dismiss his appeal. On September 30, 2016, this court granted
Mr. Guijarro’s motion and issued the mandate on the same day. Less than one year
later, Mr. Guijarro filed his § 2255 motion in the district court. Accordingly, Mr.
Guijarro’s motion is timely under 28 U.S.C. § 2255(f)(1).
                                           2
was ineffective by failing to investigate and present mitigating evidence of his

mental-health issues.

       The district court denied Mr. Guijarro’s § 2255 motion. The court held that the

sentencing court had correctly calculated Mr. Guijarro’s base offense level. The court

also held that counsel’s performance at sentencing was reasonable, and, even if

counsel’s performance was not reasonable, Mr. Guijarro was incapable of

demonstrating that he was prejudiced by any deficient performance. Notably, the

court observed that Mr. Guijarro’s sentence of 120 months of imprisonment was the

statutory minimum, and any potentially mitigating evidence—i.e., Mr. Guijarro’s

mental-health issues—“would not have rendered a different result.” R. vol. I at 68

n.4.

       Mr. Guijarro filed a timely notice of appeal. We remanded the case back to the

district court to decide, in the first instance, whether Mr. Guijarro was entitled to a

COA. The district court promptly issued an order denying Mr. Guijarro a COA. Mr.

Guijarro now moves this court for a COA.

                                     DISCUSSION

       To obtain a COA, Mr. Guijarro must make a “substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). Specifically, Mr. Guijarro must

show that “reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484

(2000). We have closely examined the pleadings and the record in this case and

determine that Mr. Guijarro has not made such a showing.

                                            3
      Mr. Guijarro presses two arguments on appeal. First, Mr. Guijarro argues that

reasonable jurists could debate whether his plea of guilty was knowingly and

intelligently made. But Mr. Guijarro did not raise this issue below. Absent

extraordinary circumstances, we will not consider arguments raised for the first time

on appeal. United States v. Banks, 355 F. App’x 123, 126 (10th Cir. 2009) (citing

Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1143 (10th Cir. 2009)). We do not

believe that this case presents extraordinary circumstances.

      Mr. Guijarro provides no evidence to support his conclusory assertion that

“reasonable jurists would debate whether his plea of guilty was intelligent and/or

knowingly and voluntarily made.” Appellant’s Mot. for COA at 4. In fact, at his

change of plea hearing, Mr. Guijarro told the court that he was competent, that he

understood the consequences of pleading guilty, and that he was pleading guilty on

his own accord. We see no reason to doubt these statements and, accordingly, fail to

identify any extraordinary circumstances that would justify our consideration of an

issue that Mr. Guijarro did not raise below.

      Second, Mr. Guijarro argues that the district court erred when it denied his

IAC claim. To prove an IAC claim, Mr. Guijarro must show two things: 1) that

counsel’s representation was deficient; and 2) that “but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Strickland v.

Washington, 466 U.S. 668, 687-694 (1984). Failure to prove either of these factors

means that Mr. Guijarro’s claim must be denied. Id. at 687.



                                           4
      Here, it is inarguable that Mr. Guijarro cannot satisfy the second factor. Even

if we assume Mr. Guijarro’s counsel was deficient—which we do not believe was the

case—we do not see how Mr. Guijarro was prejudiced. As the district court noted,

Mr. Guijarro was sentenced to the statutory minimum of 120-months imprisonment.

While the government filed a § 5K1.1 motion for a downward departure, this did not

permit the court to sentence Mr. Guijarro below the statutory minimum. See

Melendez v. United States, 518 U.S. 120, 129-130 (1996) (holding that a § 5K1.1(a)

motion did not authorize the district court to sentence defendant below statutory

minimum). Without another motion from the government, the sentencing court could

not have given Mr. Guijarro a lower sentence. See 21 U.S.C. § 841(b)(1)(A)(ii)(II).

No amount of mitigating evidence would change this result. Accordingly, we do not

believe any reasonable jurist would debate the district court’s resolution of this issue

and we deny Mr. Guijarro’s request for a COA.

                                   CONCLUSION

      For the reason detailed above, we deny Mr. Guijarro’s request for a COA and

dismiss this appeal. Additionally, Mr. Guijarro’s motion for appointment of counsel

is denied.


                                            Entered for the Court


                                            Gregory A. Phillips
                                            Circuit Judge




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