                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          DEC 19 2000

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                              Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 00-2194
 v.                                          (D.C. No. CIV-99-713-BB/WWD)
                                                      (New Mexico)
 VICTOR HUGO NAVARRO,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, EBEL, and BRISCOE, Circuit Judges.


      Victor Hugo Navarro was convicted after a jury trial of conspiring to

possess and possessing over 100 kilograms of marijuana with intent to distribute,

and was sentenced to 68 months incarceration. He did not file a direct appeal and

now brings this action under 28 U.S.C. § 2255 contending that his counsel was

      *
       After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore 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judgment is not binding precedent, except under the doctrines of law of the case,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.
ineffective in failing to move the sentencing court for a downward departure. The

district court denied relief and denied Mr. Navarro’s request for a Certificate of

Appealability (COA). Mr. Navarro renews his request on appeal. As discussed

briefly below, we conclude that Mr. Navarro has failed to show he has met the

standards applicable to a COA and we therefore deny his motion and dismiss his

appeal.

      Mr. Navarro contends his counsel was ineffective in failing to argue at

sentencing that Mr. Navarro should have been granted a downward departure on

the basis of his family ties, his employment history, and his aberrant behavior. To

succeed on this claim, Mr. Navarro must show his counsel’s behavior fell below

an objective standard of reasonableness, and there is a reasonable probability that

but for counsel’s alleged errors the result of the sentencing would have been

different. See Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). Mr.

Navarro has failed to establish that his sentence would have been different had his

counsel sought a downward departure on the basis of the asserted factors.

      Mr. Navarro first contends departure was warranted on the ground that his

criminal activity was aberrant behavior, pointing out that he has no previous

record of criminal activity. 1 Although this court has upheld departures for


      1
        The record contains evidence of a polygraph test taken by Mr. Navarro
which indicated that, despite his lack of a criminal record, Mr. Navarro lied when
he said he had not previously undertaken illegal drug activity.

                                         -2-
aberrant behavior on the fact that the defendant had no prior documented history

of criminal activity, see Tsosie v. United States, 14 F.3d 1438, 1441 (10th Cir.

1994), we have subsequently reexamined the matter in light of Koon v. United

States, 518 U.S. 81 (1996), and now hold that “an aberrant behavior departure

must involve something other than an act which is merely a first offense,” and

must contain “some unique circumstance–some element of abnormal or

exceptional behavior–beside the fact the defendant has never before committed

the crime.” United States v. Benally, 215 F.3d 1068, 1074 (10th Cir. 2000). Our

examination of the record has uncovered no additional unique circumstance here.

A downward departure would therefore not have been justified on the basis of

aberrant behavior.

      Mr. Navarro contends a downward departure would also have been justified

by his employment history, pointing out that despite his limited education he has

had a long, continuous and reliable work history. A defendant’s employment

record is a discouraged factor in determining whether a sentence outside the

guideline range is appropriate. See U.S.S.G. §5H1.5; United States v. Jones, 158

F.3d 492, 498 (10th Cir. 1998). It therefore cannot be considered in evaluating

the propriety of a downward departure unless the circumstances show the factor is

present to an exceptional degree. See Benally, 215 F.3d at 1073. Mr. Navarro’s

employment history, while admirable, is not exceptional under the circumstances.


                                         -3-
See United States v. Ziegler, 39 F.3d 1058, 1062 (10th Cir. 1994) (“reliable

employment record ‘replete with positive statements from employers’” does not

present extraordinary circumstances justifying departure).

      Finally, Mr. Navarro argues that a downward departure would have been

justified by his family ties and responsibilities. He has been in a stable marriage

for twenty years. His wife has never worked outside the home and he is the sole

support of their three children. Family ties and responsibilities are a discouraged

factor, see U.S.S.G. § 5H1.6; and may therefore only be the basis for a departure

in an atypical case, see Jones, 158 F.3d at 499. To warrant a departure on this

basis, a defendant must show that the sentence would have an effect on the family

beyond that which would be present in the usual case. See id. The circumstances

here do not make that showing. See Gallegos, 129 F.3d at 1146 (fact that

defendant was sole support for her son and partial support for her parents did not

take circumstances out of the heartland).

      In sum, Mr. Navarro has shown no facts justifying a downward departure

on the basis of aberrant behavior. He has likewise failed to allege any

exceptional circumstances that would justify a departure on the discouraged

factors of work history or family responsibilities. Finally, he has not shown his

situation to be the “extremely rare” and “exceptional case” that because of a

combination of characteristics falls outside the sentencing heartland even though


                                         -4-
none of the circumstances individually would justify departure. See U.S.S.G. §

5K2.0, comment.

         Accordingly, Mr. Navarro has not shown he was prejudiced by his

counsel’s failure to seek a downward departure at sentencing. 2 He has therefore

failed to make a substantial showing of the denial of a constitutional right by

demonstrating that the issues raised are debatable among jurists, that a court

could resolve the issues differently, or that the questions deserve further

proceedings. See 28 U.S.C. § 2253(c); Lennox v. Evans, 87 F.3d 431 (10th Cir.

1996).

         The request for a COA is DENIED and the appeal is DISMISSED.

                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Chief Judge




       Indeed, the presentence report reflects that Mr. Navarro was subject to a
         2

mandatory minimum sentence of 60 months so any downward departure could
only have reduced his 63-month sentence by three months.

                                         -5-
