                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  April 29, 2013
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 13-6027
 v.                                           (D.C. Nos. 5:12-CV-01130-M and
                                                    5:11-CR-00122-M-1)
 JOSE AVITIA-BUSTAMANTE,                                (W.D. Okla.)

          Defendant-Appellant.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.


      Jose Avitia-Bustamante pleaded guilty to re-entering the country

unlawfully, a crime under 8 U.S.C. § 1326(a) and one for which a federal district

court sentenced him to forty-six months in prison. On direct appeal, Mr. Avitia-

Bustamante argued that his sentence was procedurally unreasonable because the

district court hadn’t explained why it imposed the sentence it did. But because

Mr. Avitia-Bustamante didn’t raise any such objection before the district court,

we could and did review this argument only for plain error. See United States v.



      *
        This order is not binding precedent except under the doctrines of law of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.
Avitia-Bustamante, 479 F. App’x 855, 858 (10th Cir. 2012). And with no

evidence that Mr. Avitia-Bustamante’s “substantial rights” were affected, we

could find no plain error and upheld the district court’s sentence. See id.

      Mr. Avitia-Bustamante now tries to make the same general point, this time

in a 28 U.S.C. § 2255 motion and in the specific context of an ineffective-

assistance-of-counsel claim. The district court denied the motion and Mr. Avitia-

Bustamanate turns to us for a certificate of appealability (“COA”) so that he may

take an appeal.

      In order to obtain a COA, Mr. Avitia-Bustamante must make a “substantial

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

do this, he must demonstrate 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).

      Mr. Avitia-Bustamante has not met this standard. In his direct appeal, we

explained that he had failed to show that “there [was] a reasonable probability

that the judge would have chosen a lower sentence” even “if the judge had

explained his sentencing choice.” Avitia-Bustamante, 479 F. App’x at 858. In

passing on his § 2255 motion, the district court explained that Mr. Avitia-

Bustamante still had not made such a showing and that his failure to do so

                                        -2-
doomed his ineffective assistance claim just as it had his sentencing appeal. This

because it is the defendant’s burden in any ineffective assistance claim to show

that, but for counsel’s alleged “errors, the result of the proceeding would have

been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). We discern

no error in either the district court’s reasoning or result.

      Mr. Avitia-Bustamante separately argues that this court was wrong to

employ plain error review in his direct appeal. Wrong, he says, because his

treatment by the sentencing court offended the Constitution’s equal protection and

due process guarantees. Whatever the merits of this argument, it’s not one Mr.

Avitia-Bustamante raised either on direct appeal or even in his § 2255 motion

before the district court, and he is not free to introduce it at this late stage. See

United States v. Cervini, 379 F.3d 987, 990 (10th Cir. 2004) (“[F]ailure to raise

an issue . . . on direct appeal imposes a procedural bar to habeas review.”); see

also Dockins v. Hines, 374 F.3d 935, 940 (10th Cir. 2004) (declining to consider

argument in COA application not presented first to the district court).

      The requests for a COA and for leave to proceed in forma pauperis are

denied and this appeal is dismissed. Mr. Avitia-Bustamante is reminded that he

must pay the filing and docket fees in full to the clerk of the district court.

                                         ENTERED FOR THE COURT


                                         Neil M. Gorsuch
                                         Circuit Judge

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