                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          JUL 14 2000

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 99-2343
 v.                                             (D.C. No. CIV-98-1474-LH)
                                                       (New Mexico)
 ENRIQUE CHAVEZ-RAMOS,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, EBEL, and BRISCOE, 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)(2); 10th Cir. R. 34.1(G). The cause 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       This order and judgment is not binding precedent, except under the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, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Enrique Chavez-Ramos, appearing pro se, appeals from the denial of his

petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2255, and seeks a

certificate of appealabilty, see 28 U.S.C. § 2253(c)(1)(B). We deny his request

for the certificate and dismiss his appeal.

      Mr. Chavez-Ramos pled guilty in federal court to several felonies,

including conspiracy to distribute more than 1000 kilograms of marijuana,

possession of more than 100 kilograms of marijuana with intent to distribute, and

money laundering. His plea agreement stated that the statutory mandatory

minimum sentence for the conspiracy charge was ten years. The agreement also

contemplated the possibility of safety valve relief under 18 U.S.C. § 3553(f)(1),

contingent upon his not having more than one criminal history point under the

Federal Sentencing Guidelines.

      When the presentence report was completed, the Probation Office

concluded that Mr. Chavez-Ramos’ two prior criminal convictions for driving

while under the influence should count in computing Mr. Chavez-Ramos’ criminal

history score. As the result of these two convictions, the Probation Office

concluded that Mr. Chavez-Ramos failed to meet the criteria for safety valve

relief. At his sentencing hearing, Mr. Chavez-Ramos contended his first DUI

conviction should not have been included in his criminal history score because it

was a first offense and the equivalent of a minor traffic violation. The court


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rejected this argument, and sentenced Mr. Chavez-Ramos to 125 months in prison.

      Mr. Chavez-Ramos appealed his sentence on the same grounds he presented

to the district court. His attorney filed an appellate brief pursuant to Anders v.

California, 386 U.S. 738 (1967), and moved to withdraw on the grounds that the

claims brought on appeal were frivolous. We granted the motion and dismissed

the appeal, finding it contrary to controlling case law. See United States v.

Chavez-Ramos, No. 97-2390, 1999 WL 7727 (10th Cir. Jan. 11, 1999)

(“Convictions for driving . . . under the influence of alcohol count toward the

criminal history and are not considered minor infractions.”) (citing U.S.S.G. §

4A1.2 Commentary, Application note 5; United States v. Walling, 974 F.2d 140,

142 (10th Cir. 1992)).

      Mr. Chavez-Ramos then filed this petition for habeas corpus relief asserting

three claims: (1) the United States breached his plea agreement, violating his due

process rights; (2) the United States utilized his criminal history without fulfilling

its burden of proof; and (3) his attorney provided ineffective assistance of

counsel. The magistrate judge issued a report recommending the petition be

denied on the merits with respect to those issues that had not been decided on

direct appeal. The district court agreed, adopted the magistrate’s report, and

denied Mr. Chavez-Ramos’ request for a certificate of appealability.

      In his appeal to this court, Mr. Chavez-Ramos raises only the ineffective


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assistance of counsel claim. He argues he is entitled to a certificate of

appealability because the magistrate’s findings and conclusions were in error,

denying him due process. A certificate of appealability may issue only if the

applicant has made a substantial showing of the denial of a constitutional right.

See 28 U.S.C. § 2253(c)(2). Mr. Chavez-Ramos has failed to make this showing.

          Having reviewed the entire record, we are convinced the magistrate’s

report contains a reasoned and accurate analysis of Mr. Chavez-Ramos’ claims.

We also note the earlier Tenth Circuit panel’s disposition of Mr. Chavez-Ramos’

direct appeal. Mr. Chavez-Ramos’ sentence was correct and was mandated by the

Federal Sentencing Guidelines. The language and terms of the plea agreement he

signed are unambiguous. Because the plea agreement was proper and

unambiguous and the sentence was correct, Mr. Chavez-Ramos’ counsel was not

ineffective in his handling of the plea. 1 The district court’s denial of Mr. Chavez-

Ramos’ petition on this basis therefore did not deny him any constitutional right.

      Accordingly, Mr. Chavez-Ramos’ request for a certificate of appealability



      1
       Mr. Chavez-Ramos also argues, for the first time on appeal, that his
counsel was ineffective for failing to challenge the validity of his DUI
convictions. In the absence of extraordinary circumstances, we will not consider
issues not raised in the district court. See Smith v. Secretary of New Mexico Dept.
of Corrections, 50 F.3d 801, 814 n.22 (10th Cir. 1995). We are offered no
extraordinary circumstances here, and we decline to consider the issue.



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is DENIED and his appeal is DISMISSED.

                                ENTERED FOR THE COURT


                                Stephanie K. Seymour
                                Chief Judge




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