                                                                             F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                              June 9, 2006
                                   TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                             Clerk of Court


 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 05-2341
 MARIA PETRA MACIAS-LOPEZ,                        (D.C. Nos. CIV-04-943 RB/WDS and
                                                           CR-03-2152-RB)
           Defendant-Appellant.                            (D. New Mexico)




                                           ORDER *


Before HENRY, BRISCOE, and O’BRIEN, Circuit Judges.


       Maria Macias-Lopez, a federal prisoner appearing pro se, seeks a certificate of

appealability (COA) in order to challenge the district court’s denial of her 28 U.S.C. §

2255 motion to vacate her sentence. Because Macias-Lopez has failed to make “a

substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we

deny her request and dismiss the matter.

                                             I.

       Macias-Lopez is a native of Mexico. On August 13, 2001, Macias-Lopez was

removed from the United States after being convicted on February 19, 2001, of attempt to



       *
         This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel.
commit child abuse and battery of a peace officer. It is uncontroverted that Carter

reentered the United States without permission to do so and was apprehended on

September 1, 2003, by Border Patrol agents in the State of New Mexico. Macias-Lopez

was charged in federal court with reentry of a deported alien previously convicted of an

aggravated felony, in violation of 8 U.S.C. §§ 1326(a)(1) and (b)(2). Macias-Lopez pled

guilty to the charge on October 29, 2003, without benefit of a plea agreement. On

January 7, 2004, the district court sentenced Macias-Lopez to 46 months’ imprisonment,

a sentence at the bottom of the guideline range (46 to 57 months).

       On August 17, 2004, Macias-Lopez filed her pro se § 2255 motion alleging that

her trial counsel was ineffective for failing to prevent the district court from applying a

sixteen-level enhancement due to her prior conviction for a violent felony. According to

Macias-Lopez, the enhancement was improper because she had already been punished for

her prior conviction. After directing the government to file a response, the magistrate

judge assigned to the case issued a report recommending that Macias-Lopez’s motion be

denied. In doing so, the magistrate judge noted he had reviewed the transcript of Macias-

Lopez’s guilty plea and had found “no instance where defense counsel’s performance in

connection with the plea hearing was deficient, let alone ‘below an objective standard of

reasonableness.’” ROA, Doc. 9 at 6. The magistrate judge further concluded that

Macias-Lopez could not establish prejudice “given the non-discretionary nature of the

Sentencing Guidelines” at the time of her sentencing. Id. at 8. Finally, the magistrate

judge concluded that, to the extent Macias-Lopez was asserting a violation of Blakely v.

                                             -2-
Washington, 542 U.S. 296 (2004), there was no merit to the argument because the only

sentence enhancement imposed by the district court was on the basis of Macias-Lopez’s

prior conviction, and not on the basis of any judicially-found facts. The district court

subsequently adopted the findings and recommendation of the magistrate and, on October

4, 2005, dismissed Macias-Lopez’s petition. Thereafter, the district court denied Macias-

Lopez a COA. Macias-Lopez has now filed a notice of appeal and seeks a COA from this

court.

                                              II.

         The denial of a motion for relief under § 2255 may be appealed only if the district

court or this court first issues a COA. 28 U.S.C. § 2253(c)(1)(B). A COA “may issue . . .

only if the applicant has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). In order to make such a showing, a petitioner must

demonstrate that “reasonable jurists could debate whether . . . 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).

         To support a claim of ineffective assistance of counsel, a petitioner must show that

her attorney’s performance “‘fell below an objective standard of reasonableness’ and that

the unreasonably deficient performance resulted in prejudice.” Lucero v. Kerby, 133 F.3d

1299, 1323 (10th Cir. 1998) (quoting Strickland v. Washington, 466 U.S. 668, 688, 691-

92 (1984)). As noted, the magistrate judge concluded, and the district court agreed, that

                                              -3-
Macias-Lopez could not satisfy either of these two requirements.

       After reviewing the record on appeal, we agree with the magistrate judge and the

district court. Based upon Macias-Lopez’s guilty plea, the district court was required

under the United States Sentencing Guidelines to first impose a base offense level of

eight, and then to increase that base offense level by sixteen levels due to Macias-Lopez

having been previously deported after being convicted of a crime of violence. See

U.S.S.G. §§ 2L1.2(a) and (b)(1)(A) (2003). Because there was no legal basis for

challenging the sixteen-level enhancement, Macias-Lopez’s defense counsel was clearly

not ineffective for failing to object to that enhancement, nor was Macias-Lopez

prejudiced by his failure to do so.

       The request for a COA is DENIED, the motion to proceed IFP is denied, and the

matter is DISMISSED.


                                                  Entered for the Court


                                                  Mary Beck Briscoe
                                                  Circuit Judge




                                            -4-
