                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                September 19, 2013
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                        No. 12-1512
 v.                                           (D.C. Nos. 1:08-CV-01818-RPM;
                                                 1:03-CR-00036-RPM-10)
 DWAYNE WILSON,                                          (D. Colo.)

             Defendant - Appellant.



                       ORDER DENYING CERTIFICATE
                           OF APPEALABILITY *


Before KELLY, HOLMES, and MATHESON, Circuit Judges.


      Federal inmate Dwayne Wilson, proceeding pro se, 1 requests a certificate of

appealability (“COA”) to contest the district court’s denial of his 28 U.S.C.

§ 2255 motion to vacate, correct, or set aside his sentence. He also seeks our

leave to proceed in forma pauperis (“IFP”). We deny Mr. Wilson’s request for a

COA, deny his request to proceed IFP, and dismiss this matter.

      *
              This order is not binding precedent except under the doctrines of law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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
      1
             Because Mr. Wilson is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garza v.
Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010).
                                         I

      A federal jury convicted Mr. Wilson of various offenses related to his role

in a drug distribution conspiracy. On direct appeal, we affirmed. United States v.

Wilson, 183 F. App’x 814 (10th Cir. 2006). Mr. Wilson then sought § 2255 relief

from the district court, which denied him such relief and also denied him a COA.

He now asks us for a COA in order to appeal the district court’s denial of his

§ 2255 motion.

                                         II

      We are not authorized to adjudicate the merits of an appeal from a denial of

a § 2255 motion unless the movant has first obtained a COA. See 28 U.S.C.

§ 2253(c)(1)(B); see also United States v. Moya, 676 F.3d 1211, 1213 (10th Cir.

2012). “A COA will issue ‘only if the applicant has made a substantial showing

of the denial of a constitutional right.’” Coppage v. McKune, 534 F.3d 1279,

1281 (10th Cir. 2008) (quoting 28 U.S.C. § 2253(c)(2)); accord Harris v.

Dinwiddie, 642 F.3d 902, 906 (10th Cir. 2011). “To make such a showing, an

applicant must demonstrate ‘that reasonable jurists could debate whether (or, for

that matter, agree that) the [motion] should have been resolved in a different

manner or that the issues presented were adequate to deserve encouragement to

proceed further.’” Harris, 642 F.3d at 906 (quoting Slack v. McDaniel, 529 U.S.

473, 484 (2000)).




                                         2
                                         III

      We understand Mr. Wilson to raise the following arguments in his

application for a COA: (1) the district court abused its discretion in construing a

letter from him to the court as a § 2255 motion; (2) the district court made

insufficient findings at his sentencing; (3) his trial and appellate attorneys

provided ineffective assistance of counsel; (4) the district court improperly

adopted facts in a presentence investigation report (“PSR”); (5) he was wrongly

sentenced under a statutory enhancement rather than the sentencing guidelines;

(6) the district court inappropriately considered a co-defendant’s sentence in

handing down his own; and (7) the district court did not offer sufficient findings

in its denial of a COA.

                                          A

      Mr. Wilson contends that the district court abused its discretion when it

characterized a letter he wrote to the court as a § 2255 motion without giving him

adequate notice; as support, he cites the Supreme Court’s decision in Castro v.

United States, 540 U.S. 375 (2003). Mr. Wilson’s contention is factually

mistaken; we see nothing in the record to support it. And it is also legally

misguided. Unlike in Castro, Mr. Wilson expressly relied on “the legal label” of

§ 2255 in filing his motion, and the district court ruled on the motion as such.

Castro, 540 U.S. at 381 (“Federal courts sometimes will ignore the legal label

that a pro se litigant attaches to a motion and recharacterize the motion in order to

                                          3
place it within a different legal category.”). Accordingly, there was no need for

the district court to give Mr. Wilson the notice that Castro contemplates. See id.

at 383 (“The limitation applies when a court recharacterizes a pro se litigant’s

motion as a first § 2255 motion. In such circumstances the district court must

notify the pro se litigant that it intends to recharacterize the pleading . . . .”).

Therefore, we find no merit in Mr. Wilson’s recharacterization argument.

                                            B

       In Mr. Wilson’s view, the district court made insufficient findings at his

sentencing. He relies in part on Federal Rule of Civil Procedure 52(a)(1), but a

COA can only be granted for constitutional errors. See United States v. Gordon,

172 F.3d 753, 754 (10th Cir. 1999). In any event, Rule 52(a)(1) relates only to

civil bench trials and Mr. Wilson was found guilty by a jury in a criminal

prosecution.

       The thrust of Mr. Wilson’s argument on this point appears to be that the

district court failed to identify with sufficient specificity the type or quantity of

drugs involved in his offense, despite the fact that Mr. Wilson’s objections to the

PSR called those matters into question. Be that as it may, the only right Mr.

Wilson had to such a specific finding emanated from Federal Rule of Criminal

Procedure 32(i)(3)(B), and, as mentioned, we are not permitted to grant a COA

for a non-constitutional error.


                                             4
                                          C

      We likewise see no merit in Mr. Wilson’s contention that his attorneys

were ineffective for failing to assert arguments about the type and quantity of the

drugs associated with the conspiracy. A § 2255 movant claiming ineffective

assistance of counsel must demonstrate “that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

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

the district court implicitly found the type and quantity of drugs when it

sentenced Mr. Wilson. Moreover, the sentencing transcript reflects that the

district court was aware of Mr. Wilson’s challenge to the drug evidence, and Mr.

Wilson acknowledges in his application for a COA and in various other filings

that there was in fact some evidence to support the district court’s finding.

Though Mr. Wilson regards that evidence as “false and inaccurate and

unconstitutional,” Aplt. Opening Br. at 9, that does not alter the fact that the

district court was aware of Mr. Wilson’s concerns about the evidence and chose

to discount them. Thus, there is nothing to suggest that the outcome would have

been any different had counsel fought the drug findings, and Mr. Wilson’s

ineffective assistance claim founders on Strickland’s prejudice prong.

                                          D

      Turning to Mr. Wilson’s next argument, he takes issue with the district


                                          5
court’s decision to “adopt” the PSR with respect to the drug type and quantity.

Id. at 10. As an initial matter, no constitutional provision prevents a district court

from adopting such a finding after considering the parties’ respective positions on

the matter, which is exactly what the district court did. Indeed, the record makes

clear that the district court took note not only of defense counsel’s objections to

the PSR, but of Mr. Wilson’s additional personal objections as well. We see no

impropriety, let alone one rising to constitutional dimensions. See United States

v. Landry, 465 F. App’x 746, 754 (10th Cir. 2011) (“Thus, we do not find error in

the district court’s adoption of the PSR’s drug quantity finding.”).

      Furthermore, to the extent that Mr. Wilson is making out a sufficiency-of-

the-evidence claim regarding the drug quantity, he cannot do so in a § 2255

motion, as he made no such claim in his direct appeal and has not shown cause

and prejudice, or a miscarriage of justice. See United States v. Geiner, 443 F.

App’x 378, 381 (10th Cir. 2011) (denying a COA on a sufficiency-of-the-

evidence claim in a § 2255 motion where it was not raised on direct appeal and

where there was no showing of cause and actual prejudice, or a miscarriage of

justice); United States v. Allen, 16 F.3d 377, 378 (10th Cir. 1994) (“A defendant

who fails to present an issue on direct appeal is barred from raising the issue in a

§ 2255 motion, unless he can show cause for his procedural default and actual

prejudice resulting from the alleged errors, or can show that a fundamental

miscarriage of justice will occur if his claim is not addressed.”). And, even if Mr.

                                           6
Wilson were entitled to raise the argument at this late date, his conclusory

assertions that the evidence of drug quantity and type was insufficient would not

qualify him for a COA, particularly as he does not even make clear what the

evidence was, let alone what was wrong with it. See United States v. Parker, 720

F.3d 781, 784 n.1 (10th Cir. 2013) (“While we liberally construe Parker’s pro se

filings, we will not ‘assume the role of advocate.’”) (quoting Yang v. Archuleta,

525 F.3d 925, 927 n.1 (10th Cir. 2008)).

                                           E

      It is Mr. Wilson’s position that his term of imprisonment should have been

calculated with reference to the sentencing guidelines rather than a statutory

sentencing enhancement because he was convicted of conspiracy. Again, this is

not a constitutional claim and consequently not suited to a § 2255 motion. In

addition, the argument is meritless. See United States v. Nicholson, 243 F. App’x

378, 381 (10th Cir. 2007) (affirming a district court that applied the enhancement

in question to a conspiracy conviction); United States v. Ellis, 326 F.3d 593, 598

n.4 (4th Cir. 2003) (same); see also United States v. Kimler, 335 F.3d 1132, 1145

(10th Cir. 2003) (“[S]tatutes trump guidelines when the two conflict.”).

                                        F

      Mr. Wilson complains that the district court impermissibly took a co-

defendant’s sentence into account when determining his own. Though the


                                           7
Constitution gives defendants the right to “individualized consideration” by

sentencing courts, Hatch v. Oklahoma, 58 F.3d 1447, 1466 (10th Cir. 1995),

overruled on other grounds by Daniels v. United States, 254 F.3d 1180, 1188 n.1

(10th Cir. 2001) (en banc), it does not require courts to ignore the sentences

received by co-defendants. See, e.g., Meyer v. Branker, 506 F.3d 358, 375 (4th

Cir. 2007); Beardslee v. Woodford, 358 F.3d 560, 579 (9th Cir. 2004); Schneider

v. Delo, 85 F.3d 335, 342 (8th Cir. 1996). It also warrants mention that the

district court here plainly regarded the co-defendant’s sentence as a reason to

impose a less severe penalty on Mr. Wilson. As a result, the error Mr. Wilson

alleges could not have injured him.

                                         G

      Lastly, Mr. Wilson avers that the district court offered insufficient findings

to justify its denial of a COA. Whatever the merits of this argument are, it is

simply not a reason for us to grant one. As demonstrated above, Mr. Wilson has

not “made a substantial showing of the denial of a constitutional right,” Coppage,

534 F.3d at 1281 (quoting 28 U.S.C. § 2253(c)(2)) (internal quotation marks

omitted), and so we deny his request for a COA.

                                         IV

      For the reasons stated, we deny Mr. Wilson’s request for a COA, deny his




                                          8
request to proceed IFP, and dismiss this matter. 2




                                              Entered for the Court




                                              JEROME A. HOLMES
                                              Circuit Judge




      2
            Mr. Wilson has filed a motion for release on bail pending review of
his § 2255 motion. We deny that motion as moot.

                                          9
