                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                     October 1, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                       Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                        No. 09-2080
                                                            (D. N.M.)
 JOSE FRANCISCO DIAZ,                         (D.Ct. Nos. 1:08-CV-00344-MV-LFG
                                                    & 1:03-CR-02112-MV-7)
          Defendant - Appellant.



            ORDER DENYING CERTIFICATE OF APPEALABILITY
                       & DISMISSING APPEAL


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



      Jose Francisco Diaz, a federal prisoner appearing pro se, 1 seeks a certificate

of appealability (COA) to appeal from the district court’s denial of his motion to

vacate, set aside or correct sentence filed pursuant to 28 U.S.C. § 2255. Because

he has not “made a substantial showing of the denial of a constitutional right,” 28

U.S.C. § 2253 (c)(2), we deny a COA.

                                   I. BACKGROUND

      Diaz was convicted by a jury of conspiracy to possess with intent to

      1
        We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).
distribute 1,000 kilograms and more of marijuana within 1,000 feet of a school

and within 1,000 feet of a truck stop in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(A), 846, 849 and 860. The probation department prepared a presentence

report (PSR). It calculated Diaz’s total offense level as 39, which included a 2-

level upward adjustment for his role in the offense, see USSG §3B1.1(c), and a 2-

level upward adjustment for the use of a minor, see USSG §3B1.4. 2 It also

determined Diaz had three criminal history points, resulting in a Criminal History

Category of II. Based on an offense level of 39 and a Criminal History Category

of II, Diaz’s advisory guideline range was 292 to 365 months.

      Diaz objected to the PSR. He argued the evidence at trial did not support

the role in the offense adjustment nor the adjustment for the use of a minor. He

also sought a downward variance of four levels to 120 months (the mandatory

minimum) under 18 U.S.C. § 3553(a) based on the disparity of sentences which

would otherwise result between himself and his codefendants, in particular, the

leader of the conspiracy.

      The district court held two sentencing hearings. At the first hearing, the

court sustained Diaz’s objections to the two adjustments. This reduced Diaz’s

base offense level to 35, resulting in an advisory guideline range of 188 to 235

months. Concerned, however, that Diaz still faced a minimum sentence of 188


      2
        Because Diaz was sentenced pursuant to the 2004 edition of the United States
Sentencing Guidelines Manual, all guideline citations refer to the 2004 edition.

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months while the leader of the conspiracy was sentenced to 240 months, the court

took a recess. During the recess, the probation department suggested Criminal

History Category II may substantially overrepresent the seriousness of Diaz’s

criminal history. See USSG §4A1.3. The court determined this was an issue

worthy of further briefing. Accordingly, it continued sentencing to allow the

government an opportunity to respond. At the second hearing, over the

government’s objection, the court concluded Criminal History Category II

substantially overrepresented the seriousness of Diaz’s criminal history. It noted

Diaz “had three minor misdemeanor convictions close to ten years prior to the

instant offense, and no other evidence of prior criminal behavior in the

intervening period.” (R. Vol. I at 114.) Thus, the court reduced his Criminal

History Category to I under USSG §4A1.3. Based on an offense level of 31 and a

Criminal History Category of I, the advisory guideline range was 168 to 210

months. The court sentenced Diaz to 168 months imprisonment. It also imposed

a 120-month term of supervised release. We affirmed Diaz’s conviction and

sentence on direct appeal. See United States v. Diaz, 213 Fed. Appx. 647 (10th

Cir. 2007) (unpublished).

      Diaz filed a motion to vacate, set aside or correct sentence under 28 U.S.C.

§ 2255, alleging he received ineffective assistance of counsel at sentencing based

on counsel’s failure to (1) argue he was eligible for safety valve relief after the

district court reduced his criminal history category under USSG §4A1.3(b); (2)

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move for a reduction in his sentence under the factors set forth in 18 U.S.C. §

3553(a); (3) allege Criminal History Category II substantially overrepresented the

seriousness of his criminal history under USSG §4A1.3(b); and (4) contend his

sentence was illegal because his 168-month sentence and his 120-month term of

supervised release exceeded the top of the guideline range (210 months). Diaz

separately argued his sentence was illegal because his sentence and supervised

release term resulted in a sentence exceeding the top of the advisory guideline

range.

         The magistrate judge issued a report recommending Diaz’s § 2255 motion

be denied. He rejected Diaz’s ineffective assistance of counsel claims under

Strickland v. Washington, 466 U.S. 668 (1984). According to the magistrate the

reduction in Diaz’s Criminal History Category from II to I under USSG

§4A1.3(b) did not render him eligible for safety-valve relief. A defendant does

not qualify for safety-valve relief if he has more than one criminal history point

and the number of criminal history points is determined before application of

§4A1.3(b). See USSG §5C1.2; see also United States v. Owensby, 188 F.3d 1244,

1246 (10th Cir. 1999) (downward departure under §4A1.3(b) “does not alter the

original assessment of the defendant’s criminal history points”). Because Diaz

had three criminal history points prior to the court reducing his criminal history

category under USSG § 4A1.3(b), he was not eligible for safety-valve relief and

his attorney was not ineffective for failing to raise a meritless argument. The

                                         -4-
magistrate judge also determined counsel was not ineffective for failing to move

for a reduction in his sentence under the factors set forth in 18 U.S.C. § 3553(a)

because counsel had in fact moved for such reduction. As to counsel’s failure to

allege Criminal History Category II substantially overrepresented the seriousness

of Diaz’s criminal history under USSG §4A1.3(b), the judge concluded Diaz

could not show prejudice as Diaz’s criminal history category was reduced under

USSG §4A1.3(b). He rejected Diaz’s argument that prejudice was presumed.

Finally, the magistrate judge said counsel was not ineffective for failing to argue

Diaz received an illegal sentence because the argument was futile. Imposition of

a supervised release term does not extend a sentence beyond the statutory

maximum or otherwise render it illegal. See United States v. Robinson, 62 F.3d

1282, 1284-86 (10th Cir. 1995). For this same reason, the magistrate judge

rejected Diaz’s illegal sentence claim.

       Diaz objected to the magistrate judge’s report and recommendation. The

district court overruled his objections, adopted the magistrate judge’s

recommendation and denied Diaz’s § 2255 motion. 3

                                    II. DISCUSSION


       3
         Diaz did not file a request for a COA with the district court but did file a notice of
appeal, which is construed as a request for a COA. Fed. R. App. P. 22(b). The district
court did not rule on the COA issue. We deem the district court’s failure to issue a COA
within thirty days of the filing of the notice of appeal as a denial of the certificate. 10th
Cir. R. 22.1(C).


                                             -5-
       A COA is a jurisdictional prerequisite to our review of a petition for a writ

of habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). We will issue

a COA “only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, an

applicant 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) (quotations

omitted). In evaluating whether an applicant has satisfied this burden, we

undertake “a preliminary, though not definitive, consideration of the [legal]

framework” applicable to each of his claims. Miller-El, 537 U.S. at 338.

       In his COA application and proposed opening brief, Diaz reiterates his

ineffective assistance of counsel and illegal sentence claims. 4 The magistrate

judge and district court properly disposed of these claims. Because no jurist of

reason could debate the correctness of the district court’s decision, we DENY his

request for a COA and DISMISS this nascent appeal. We DENY Diaz’s motion




       4
        In his COA application, Diaz argues, without citation to any authority, that our
requirement that he file a COA application and an opening brief within forty days or face
dismissal of the appeal is discriminatory, illegal and violates his due process rights. “We
need not address [such] unsupported, conclusory arguments.” See Ariz. Pub. Serv. Co. v.
United States Envtl. Prot. Agency, 562 F.3d 1116, 1130 (10th Cir. 2009).

                                            -6-
to proceed in forma pauperis on appeal. He is directed to remit the full amount of

the filing fee.


                                      Entered by the Court:

                                      Terrence L. O’Brien
                                      United States Circuit Judge




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