                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            JUL 27 2004
                            FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,                       No. 03-6115
                                                    (D.C. Nos. 01-CV-338-M
    v.                                                         &
                                                         98-CR-112-M)
    RAMON AGUILAR,                                        (W.D. Okla.)

                Defendant-Appellant.


                             ORDER AND JUDGMENT           *




Before EBEL , ANDERSON , and BRISCOE , Circuit Judge.


         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 case is

therefore ordered submitted without oral argument.

         Petitioner Ramon Aguilar, appearing pro se, appeals the district court’s

denial of his motion to vacate, set aside, or correct his sentence pursuant to

28 U.S.C. § 2255. In 1998, petitioner was sentenced to 125 months’


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and 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.
imprisonment, a special $100 assessment, and a four-year term of supervised

release after pleading guilty to conspiracy to possess cocaine with intent to

distribute. This court affirmed that sentence on appeal.      United States v. Aquilar ,

No. 99-6004, 2000 WL 968662, at **1 (10th Cir. July 10, 2000).

       In his § 2255 petition, petitioner alleged ineffective assistance of counsel

based upon (1) failure to object to the denial of a sentence reduction for

acceptance of responsibility; (2) failure to request a downward departure based on

petitioner’s deportable alien status; (3) failure to request a downward departure

based on petitioner’s cultural assimilation into the United States; and

(4) cumulative ineffective assistance of counsel. The district court found all

claims to be without merit and denied relief.

       This court granted a certificate of appealability on two issues: (1) whether

counsel’s performance fell below an objective standard of reasonableness when

he failed to request a downward departure based on petitioner’s deportable alien

status, and (2) whether the outcome of the proceedings would have been different

but for counsel’s failure to request a downward departure on that basis. In

reviewing a denial of a § 2255 motion, we review the district court’s factual

findings for clear error and its legal conclusions de novo.     United States v.

Pearce , 146 F.3d 771, 774 (10th Cir. 1998). Because we find no error in the

determination of the district court, we affirm.


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       “Whether a defendant received effective assistance of counsel is a mixed

question of law and fact that we review de novo.”        United States v. Prows ,

118 F.3d 686, 691 (10th Cir. 1997). To establish ineffective assistance of

counsel, a petitioner must show both that his counsel’s performance was deficient,

and that this deficient performance prejudiced him.        Strickland v. Washington ,

466 U.S. 668, 687 (1984). To establish prejudice, the petitioner “must show that

there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.”        Id. at 694.

       In denying petitioner relief under § 2255, the district court relied,   inter

alia , on United States v. Gomez-Sotelo , 18 Fed. Appx. 690 (10th Cir. Aug. 28,

2001), an unpublished decision of this court decided after petitioner had been

sentenced. Gomez-Sotelo held that, while “courts are not forbidden from

considering possible deportation as a basis for downward departure . . . possible

deportation may not be accepted as such a basis unless sanctioned by the Attorney

General in a specific case.”    Id. at 692. Because there was no evidence in the

record of the Attorney General’s position regarding petitioner’s deportation, the

district court held that petitioner’s attorney would not have been justified in

bringing a motion for downward departure based on petitioner’s status as a

deportable alien. Counsel, therefore, was not ineffective.




                                              3
       Petitioner was sentenced on December 3, 1998. In 1990, in      United States v.

Soto , 918 F.2d 882 (10th Cir. 1990), we held that a sentencing court could not

consider a defendant’s possible deportation as a basis for departing downward.

“Because Congress clearly reserved drug-related deportation decisions to the

Attorney General, a sentencing court shall not consider the possible deportation of

an alien resident for a drug conviction in deciding whether to depart downward

from the sentencing guidelines.”    Id. at 885 (citation omitted).

       Soto was overruled in part by the Supreme Court decision in      Koon v. United

States , 518 U.S. 81, 109 (1996),   limited overruling on other grounds noted by

United States v. Clough , 360 F.3d 967, 970 n.1 (9th Cir. 2004).     Koon addressed

the circumstances under which special factors may warrant departure from the

sentencing guidelines. After Koon, a sentencing court, unless specifically

prohibited by the sentencing guidelines, may consider any factor as a potential

basis for departure. United States v. Fagan, 162 F.3d 1280, 1283 (10th Cir. 1998)

(citing Koon, 518 U.S. at 109).

       In Gomez-Sotelo , 18 Fed. Appx. at 692, we explained the effect of    Koon on

our prior ruling in   Soto :

       Koon prevents the Soto rule from remaining a categorical absolute;
       hence, courts are not forbidden from considering possible deportation
       as a basis for downward departure. However, possible deportation
       may not be accepted as such a basis unless sanctioned by the
       Attorney General in the specific case.


                                           4
To the extent petitioner is arguing application of     Gomez-Sotelo to his case is an

ex post facto violation, we reiterate our conclusion     that the “principle enunciated

in Soto, which protects the policymaking authority of the Attorney General,

retains its validity.” Id. Because Gomez-Sotelo reiterates the portion of the Soto

holding requiring the Attorney General to determine deportation issues in the first

instance, there is no impermissible judicial ex post facto problem. Petitioner has

not been disadvantaged by the application of Gomez-Sotelo to his § 2255 petition.

       Accordingly, because the sentencing court was prohibited from considering

petitioner’s alien status as grounds for a downward departure in the absence of

the Attorney General first determining petitioner’s alien status, his counsel was

not ineffective for failing to urge downward departure on that basis.      See Cargle

v. Mullin , 317 F.3d 1196, 1202 (10th Cir. 2003). Counsel’s performance,

therefore, did not fall below an objective standard of reasonableness, and the

outcome of petitioner’s sentencing proceeding would not have changed had

counsel requested the downward departure.        1



       Petitioner also argues that the district court erred in ruling on his § 2255

motion without holding a hearing. The district court must hold a hearing on a

§ 2255 motion “[u]nless the motion and the files and records of the case


1
       Petitioner’s offhand reference in his brief to his alienage as another a basis
for downward departure is insufficient to raise the issue on appeal.   See Am.
Airlines v. Christensen , 967 F.2d 410, 415 n.8 (10th Cir. 1992).

                                             5
conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255.

As the district court found, the law conclusively establishes that petitioner is not

entitled to relief. The district court therefore did not err in failing to hold a

hearing.

      Petitioner’s motion for a certificate of appealability on the issues of

whether counsel was ineffective for failing to object to the denial of a sentence

reduction for acceptance of responsibility and for failing to request a downward

departure based on petitioner’s cultural assimilation into the United States, as

well as on the issue of cumulative ineffective assistance, is DENIED. His motion

to proceed on appeal without prepayment of costs and fees is GRANTED.

Petitioner is reminded that he is obligated to continue making partial payments

until the entire fee has been paid. The judgment of the district court is

AFFIRMED.

                                                       Entered for the Court

                                                       Mary Beck Briscoe
                                                       Circuit Judge




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