                                                                                   F I L E D
                                                                            United States Court of Appeals
                                                                                    Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                  August 14, 2007
                                       TENTH CIRCUIT                            Elisabeth A. Shumaker
                                                                                    Clerk of Court


 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                                 No. 07-3141
 ALFREDO ROMAN-ROMAN,                                   (D.C. Nos. 06-CV-3305-SAC and
                                                               02-CR-40127-SAC)
           Defendant-Appellant.                                    (D. Kansas)




               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before BRISCOE, McKAY, and McCONNELL, Circuit Judges.


       Alfredo Roman-Roman, a federal prisoner appearing pro se, seeks to appeal the

district court's denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his

sentence. The matter is before this court on Roman-Roman’s request for a certificate of

appealability (COA). Our jurisdiction arises under 28 U.S.C. §§ 1291 and 2253(a), and,

because Roman-Roman has not made a “substantial showing of the denial of a

constitutional right,” 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84

(2000), we deny a COA and dismiss this matter.

       Roman-Roman entered a conditional guilty plea to one count of conspiracy to



       *
         This order is not binding precedent, except under the doctrines of law of the case, res
judicata, and collateral estoppel.
possess with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 846,

841(b)(1)(A), and 18 U.S.C. § 2, and was sentenced to 135 months of imprisonment. We

affirmed on appeal. United States v. Roman-Roman, 116 Fed. Appx. 994 (10th Cir. Dec.

6, 2004). The United States Supreme Court subsequently remanded for reconsideration in

light of United States v. Booker, 543 U.S. 220 (2005), Roman-Roman v. United States,

126 S. Ct. 410 (2005), and, upon remand, we again affirmed, United States v. Roman-

Roman, 172 Fed. Appx. 811 (10th Cir. Mar. 27, 2006). Roman-Roman then filed his §

2255 petition, asserting a claim of ineffective assistance of counsel. The district court

denied the petition. Because the district court did not issue Roman-Roman a COA or

state why a certificate should not issue, we deem that Roman-Roman’s constructive

request for a COA was denied. See United States v. Kennedy, 225 F.3d 1187, 1193 n.3

(10th Cir. 2000) (holding that a COA is deemed denied if the district court does not

address its issuance within thirty days). Roman-Roman now seeks a COA and review of

his ineffective assistance of counsel claim.

       Our granting of a COA is a jurisdictional prerequisite to Roman-Roman’s appeal

from the denial of his § 2255 petition. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

To be entitled to a COA, Roman-Roman must make “a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite showing,

Roman-Roman 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.”

                                               2
Miller-El, 537 U.S. at 336 (internal quotations omitted).

       To determine whether Roman-Roman has satisfied his burden, we undertake “a

preliminary, though not definitive, consideration of the [legal] framework” applicable to

each of his claims. Miller-El, 637 U.S. at 338. Although Roman-Roman need not

demonstrate his appeal will succeed to be entitled to a COA, he must “prove something

more than the absence of frivolity or the existence of mere good faith.” Id. (internal

quotations omitted). Having undertaken a review of Roman-Roman’s application for a

COA and appellate filings, the district court’s order, and the entire record on appeal

pursuant to the framework set out by the Supreme Court in Miller-El, we conclude

Roman-Roman is not entitled to a COA. The district court's resolution of Roman-

Roman’s § 2255 motion is not reasonably subject to debate and the issues he seeks to

raise on appeal are not adequate to deserve further proceedings.

       Specifically, the gravamen of Roman-Roman’s claim is that because he was only a

drug courier, he was a minor or minimal participant in the drug conspiracy. His trial

counsel, Roman-Roman concludes, thus rendered ineffective assistance of counsel by

failing to seek a role reduction during sentencing pursuant to U.S.S.G. § 3B1.2 and

Amendment 640, U.S.S.G. App. C, 264-65 (2002). Under the two-part test established by

the Court in Strickland v. Washington, 466 U.S. 668 (1984), Roman-Roman must prove

that “counsel's representation fell below an objective standard of reasonableness” and that

“any deficiencies in counsel's performance [were] prejudicial to the defense.” Id. at 688,

692. Here, no reasonable jurist could conclude that Roman-Roman could satisfy either

                                             3
element of an ineffective assistance of counsel claim.

       First, the mere fact that a defendant is a drug courier neither mandates nor

prohibits a role reduction. See U.S.S.G. § 3B1.2, comment., n. 3(A); see also United

States v. Harfst, 168 F.3d 398, 402-03 (10th Cir. 1999) (“There is no per se rule in this

circuit that couriers are minor or minimal participants”). Instead, the decision of whether

to apply a role reduction under § 3B1.2 “is heavily dependent upon the facts of the

particular case.” U.S.S.G. § 3B1.2, comment., n. 3(C). Significantly, “[a]s with any

other factual issue, the court, in weighing the totality of the circumstances, is not required

to find, based solely on the defendant’s bare assertion, that such a role adjustment is

warranted.” Id.; see also United States v. Salazar-Samaniega, 361 F.3d 1271, 1278 (10th

Cir. 2004) (“A defendant’s own testimony that others were more heavily involved in a

criminal scheme may not suffice to prove his minor or minimal participation, even if

uncontradicted by other evidence.”). Instead, we consider “the defendant’s knowledge or

lack thereof concerning the scope and structure of the enterprise and of the activities of

others involved in the offense.” Salazar-Samaniega, 361 F.3d at 1277 (quoting United

States v. Calderon-Porras, 911 F.2d 421, 423 (10th Cir. 1990)).

       In light of this standard, no reasonable jurist could conclude that Roman-Roman’s

trial counsel acted unreasonably by failing to seek a role reduction, because Roman-

Roman’s vague and conclusory argument that he was merely a drug courier is, without

more, insufficient grounds to justify such a reduction. Bolstering our conclusion is

Roman-Roman’s failure to meaningfully dispute the district court’s finding that not

                                              4
seeking a role reduction was sound trial strategy because (1) no objection was lodged to

the pre-sentence report or to the district court’s tentative sentence during sentencing, (2)

counsel affirmed at sentencing that the proposed length of the sentence, which did not

include a role reduction, was anticipated by both counsel and Roman-Roman as a result

of the plea agreement, and (3) the statements Roman-Roman made to the police after

arrest failed to identify with particularity another more culpable individual.

       Second, no reasonable jurist could conclude that Roman-Roman was prejudiced by

his trial counsel’s failure to seek a role reduction. We reach this conclusion in light of the

above and given Roman-Roman’s failure to dispute the district court’s findings of fact

(1) that he purposefully and intentionally entered into employment as a drug courier, (2)

that he participated in the planning and carrying out of the charged crime, (3) that he

traveled a substantial distance with a significant amount (69 pounds) of

methamphetamine, and (4) that the unusually small payment he received suggests he was

to either receive profits from the distribution of methamphetamine or additional

compensation in the future.2




       2
        Roman-Roman’s additional claim that the district court erred by failing to apply
Amendment 640 to the United States Sentencing Guidelines also lacks merit because that
Amendment, since repealed, was only applicable when a district court granted a
defendant a role reduction. See U.S.S.G. App. C., Amendment 640, 264-65 (2002),
superseded by U.S.S.G. App. C, Amendment 668, 91-92 (2004).


                                              5
          We therefore DENY Roman-Roman’s application for a COA and DISMISS this

matter.


                                              Entered for the Court


                                              Mary Beck Briscoe
                                              Circuit Judge




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