                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        July 11, 2007
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

              Plaintiff-Appellee,                        No. 07-2032
       v.                                              (D. New M exico)
 GABRIEL GUILLEN-ZAPATA,                      (D.C. No. CIV-05-1177 W PJ/RLP)

              Defendant-Appellant.




                                      OR DER


Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges.


      Gabriel Guillen-Zapata, a federal prisoner proceeding pro se, seeks a

certificate of appealability (“COA”) to appeal the district court’s order denying

his 28 U.S.C. § 2255 petition to vacate, modify, or set aside his sentence. In his §

2255 petition, M r. Guillen-Zapata alleged (1) his indictment was defective, (2)

there was insufficient evidence presented at trial to demonstrate there was a single

conspiracy, rather than multiple conspiracies, and (3) his counsel was ineffective

for (a) failing to object to both the faulty indictment and the insufficient evidence

of a single conspiracy, and (b) for joining his codefendant’s motion to suppress.

In this request for a COA, M r. Guillen-Zapata challenges only the sufficiency of

the indictment and counsel’s failure to challenge the indictment. For substantially
the same reasons as the district court, we agree that M r. Guillen-Zapata is not

entitled to a C OA, and dismiss this matter.

                                 I. BACKGROUND

      Border patrol agents apprehended M r. Guillen-Zapata in N ew M exico. M r.

Guillen-Zapata is a M exican citizen who lacks immigration documents. He was

driving a vehicle that contained 1,650 pounds of marijuana. The agents also

stopped a companion lead truck, driven by Erasmo Ruiz-Soto, that contained

1,600 pounds of marijuana.

      After failing in his motion to suppress, M r. Guillen-Zapata entered a

conditional guilty plea in federal district court to (1) conspiracy to possess

marijuana w ith the intent to distribute in violation of 21 U.S.C. §§ 841(a)(1)(A),

(b)(1)(A), and 846; (2) possession with intent to distribute marijuana in violation

of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B); and (3) being found in the United States

after having been deported as an alien convicted of an aggravated felony in

violation of 8 U.S.C. §§ 1326(a) and (b)(2).

      On direct appeal, this court rejected M r. Guillen-Zapata’s challenge to the

district court’s denial of his motion to suppress, which alleged that the border

patrol agents lacked reasonable suspicion to stop his vehicle. See United States v.

Guillen-Zapata, 157 Fed. Appx. 75 (10th Cir. 2005). M r. Guillen-Zapata timely

filed his § 2255 motion.




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                                   II. DISCUSSION

      In order to obtain a COA, M r. Guillen-Zapata must make “a substantial

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

make this showing “by demonstrating that jurists of reason could disagree with

the district court’s resolution of his constitutional claims or that jurists could

conclude the issues presented are adequate to deserve encouragement to proceed

further.” M iller-El v. Cockrell, 537 U.S. 322, 327 (2003). “[A] claim can be

debatable even though every jurist of reason might agree, after the COA has been

granted and the case has received full consideration, that [the] petitioner will not

prevail.” Id. at 338.

      M r. Guillen-Zapata challenges the sufficiency of the indictment, contending

that the first count of the indictment failed to indicate when the alleged

conspiracy ended, and as such, failed to put M r. Guillen-Zapata on notice, in

violation of his Fifth and Fourteenth Amendment rights. He also maintains that

counsel provided ineffective assistance when he failed to object to the indictment.

      Count I of the Superseding Indictment stated:

      On or about the 19th day of December 2002, in D oña A na C ounty, in
      the State and District of N ew M exico and elsew here, the defendants,
      GABRIEL GUILLEN-ZAPATA and ERASM O RUIZ-SOTO, did
      unlaw fully, knowingly and intentionally combine, conspire, confederate
      and agree together and with each other and with other persons whose
      names are known and unknown to the grand jury to comm it the
      following offense against the United States, to wit: Possession with
      Intent to Distribute 1000 kilograms and more of M arijuana, a Schedule



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      I controlled substance, contrary to 21 U.S.C. § 841(a)(1) and 21 U.S.C.
      § 841(b)(1)(A).

Rec. doc. 15, at 2 ¶ 4 (M ag. Report and Recommendation, filed Dec. 22, 2006)

(quoting Superseding Indictment).

      After recognizing the indictment did not set forth an ending date for the

conspiracy, the magistrate judge recommended the indictment was sufficient

because it set forth the elements of the charged offense, put M r. Guillen-Zapata

on fair notice of the charge against w hich he had to defend, and enabled him to

assert a double jeopardy offense. See United States v. Dashney, 117 F.3d 1197,

1205 (10th Cir. 1997) (“An indictment is sufficient if it sets forth the elements of

the offense charged, puts the defendant on fair notice of the charges against which

he must defend, and enables the defendant to assert a double jeopardy defense.”).

      For substantially the same reasons as those set forth in the district court’s

order, we conclude that M r. Guillen-Zapata’s challenge to the indictment lacks

merit and, thus, his counsel was not ineffective for failing to raise it.

                                  III. CONCLUSION

      A ccordingly, w e D EN Y M r. Guillen-Zapata’s request for a COA, DENY

his motion to proceed IFP, and DISM ISS the matter.


                                  Entered for the Court,
                                  ELISABETH A. SHUM AKER, Clerk

                                  By:
                                           Deputy Clerk


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