                                                                                  FILED
                                                      United States Court of Appeals
                         UNITED STATES COURT OF APPEALS       Tenth Circuit

                                                                         September 24, 2008
                                    TENTH CIRCUIT
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
                                                              No. 08-4070
                                                      (D.C. No. 2:07-CV-00903-DB)
 v.                                                             (D. Utah)
 LUCIANO AVENDANO MONTOYA,

           Defendant - Appellant.




               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.


       Defendant Luciano Avendano Montoya, a federal prisoner appearing pro se,1 seeks

a certificate of appealability (COA) that would allow him to appeal from the district court’s




       *
           This Order and Judgment is not binding precedent, except under the doctrines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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. After
examining the briefs and the appellate record, this three-judge panel has determined
unanimously that oral argument would not be of material assistance in the determination
of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
       1
                Because Mr. Montoya is proceeding pro se, we review his pleadings and
filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Howard v. U.S.
Bureau of Prisons, 487 F.3d 808, 815 (10th Cir. 2007).
denial of his motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence.2 See

28 U.S.C. § 2253(c)(1)(B). Because we conclude that Mr. Montoya has failed to make “a

substantial showing of the denial of a constitutional right,” we deny his request for a COA

and dismiss his appeal. See id. § 2253(c)(2).

                                    I. BACKGROUND

       On September 3, 2004, a law enforcement officer stopped Mr. Montoya’s car in

Orem, Utah. Pursuant to this stop, officials searched the vehicle and found four baggies of

methamphetamine, $7,930 in cash, and a pay/owe sheet. Mr. Montoya ultimately pleaded

guilty, pursuant to a plea agreement with the government, to one count of possession with

intent to distribute fifty grams or more of methamphetamine in violation of 21 U.S.C. §

841(a)(1).   In return, the government agreed to dismiss an additional count and to

recommend that Mr. Montoya qualify for certain acceptance of responsibility reductions in

accordance with the U.S. Sentencing Guidelines Manual (“U.S.S.G.”). Additionally, and of

relevance to this appeal, the plea agreement provided that based on the information known

at the time, the government agreed that Mr. Montoya would fall within the safety valve

provisions found within 18 U.S.C. § 3553(f)(1)-(5) and U.S.S.G. § 5C1.2. These provisions

instruct that if, after affording the government the opportunity to make a recommendation,

the court finds that five criteria have been met, it must impose punishment pursuant to the

Guidelines and without regard to any statutory minimum sentence. See generally United

       2
             Because the district court did not address the issuance of a COA, its failure
to issue a COA was deemed a denial pursuant to Fed. R. App. P. 22(b)(1) and 10th Cir. R.
22.1(C).

                                              -2-
States v. Altamirano-Quintero, 511 F.3d 1087, 1090 & nn.5-6 (10th Cir. 2007) (describing

the content and operation of the safety valve provisions), cert. denied, 128 S. Ct. 2098

(2008). The government’s agreement that the safety valve provisions applied, however, was

conditioned upon Mr. Montoya’s fulfilling the criterion of § 3553(f)(5) by truthfully

providing the government all information he had regarding offenses which were part of the

same course of conduct.

       At the sentencing hearing on April 18, 2006, the government did not agree that Mr.

Montoya had fulfilled the § 3553(f)(5) requirement. Specifically, the government claimed

that Mr. Montoya was not forthcoming during interviews with an agent and that three

separate interviews were required before Mr. Montoya revealed the source of the cash seized

from his car. Even after the third interview, the government’s “agent was clearly left with

the impression that [Mr. Montoya] would only tell [him] what [Mr. Montoya] knew [the

agent] already knew.” R., Vol. I, Doc. 2 Ex. 2, at 5 (Sentencing Hr’g Tr., filed Nov. 19,

2007). The government additionally asserted that during the interviews Mr. Montoya gave

an inconsistent statement about the number of times he had sold drugs. Mr. Montoya also

stated that he was unable to identify or give the full name of his drug supplier—a claim that

the government’s agent found incredible. Finally, the government was certain that an

individual under prosecution known as “Chewy” was Mr. Montoya’s supplier. When

presented with a photograph of “Chewy,” however, Mr. Montoya would not admit that the

man in the picture was his supplier. The government therefore did not recommend Mr.

Montoya for the safety valve reduction.

                                             -3-
       The district court determined that Mr. Montoya was not eligible for the safety valve

reduction and sentenced him to the mandatory minimum of 120 months’ imprisonment,

followed by sixty months of supervised release. Mr. Montoya filed a direct appeal

challenging the district court’s refusal to apply the safety valve reduction, and this court

affirmed Mr. Montoya’s sentence. See United States v. Montoya, 227 F. App’x 740 (10th

Cir. 2007). Mr. Montoya then filed a § 2255 motion asserting that the government’s failure

to recommend the application of the safety valve reduction constituted a breach of his plea

agreement.3 The district court denied Mr. Montoya’s § 2255 motion, concluding that Mr.

Montoya failed to carry his burden of proving a breach of the plea agreement.




       3
               A defendant’s failure to raise an issue on direct appeal generally will bar his
collateral attack under § 2255 unless he can demonstrate cause excusing the procedural
default and actual prejudice resulting from the errors complained of, or that a fundamental
miscarriage of justice will occur if the claim is not addressed. See United States v.
Warner, 23 F.3d 287, 291 (10th Cir. 1994). “A court may raise this procedural bar
defense sua sponte but must afford the movant an opportunity to respond to the defense.”
Id. Furthermore, even where the court has the power to raise such procedural bar
defenses, we have counseled that it “does not mean that it must raise them sua sponte,” or
that it “ordinarily should raise” them sua sponte. Hines v. United States, 971 F.2d 506,
509 (10th Cir. 1992). On direct appeal, Mr. Montoya did not argue that the government
breached the plea agreement, and he has not offered any reason for omitting that
argument. The district court, however, did not elect to raise the procedural bar defense.
We discern no error in this omission.


                                             -4-
                                      II. STANDARD

       The denial of a motion for relief under § 2255 can be appealed only if a COA is

issued. 28 U.S.C. § 2253(c)(1)(B). A COA may not issue under § 2253(c)(1) unless “the

applicant has made a substantial showing of the denial of a constitutional right.” Id. §

2253(c)(2). This standard requires “a demonstration that . . . includes showing 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.” See Slack v. McDaniel, 529 U.S. 473, 484

(2000) (internal quotation marks omitted).

       As the party asserting a breach of the plea agreement, Mr. Montoya must prove the

underlying facts that establish the breach by the preponderance of the evidence. Allen v.

Hadden, 57 F.3d 1529, 1534 (10th Cir. 1995). Here, Mr. Montoya must show that he met

the criteria contained in the safety valve provisions, including the requirement of § 3553(f)(5)

that he truthfully provide the government with all information regarding his course of

conduct. See Altamirano-Quintero, 511 F.3d at 1090 & n.6; United States v. Verners, 103

F.3d 108, 110 (10th Cir. 1996).

                                     III. DISCUSSION

       A review of the record shows that the district court’s denial of Mr. Montoya’s § 2255

motion is not reasonably debatable. In his motion and COA application, Mr. Montoya argues

that the government’s determination that he was not offering full information was based on

the agent’s ignorance and cultural bias regarding the identification of the photograph of the

                                              -5-
man that the agent believed was his supplier.        A review of the sentencing hearing

proceedings, however, makes it clear that the government’s rationale was based on much

more than Mr. Montoya’s failure to identify the alleged supplier in a photograph; rather, the

government provided several examples of Mr. Montoya’s inconsistent and incredible

statements and other failures to divulge information as required by § 3553(f)(5).

       Moreover, as the district court noted in its denial of Mr. Montoya’s § 2255 motion,

the express terms of the plea agreement permitted the government to advise the court of its

belief that Mr. Montoya had not fulfilled § 3553(f)(5)’s disclosure requirement. After the

government did so, the district court then independently determined that the safety valve

provisions did not apply.

       Accordingly, we DENY Mr. Montoya’s request for a COA and DISMISS his appeal.


                                          Entered for the Court



                                          Jerome A. Holmes
                                          Circuit Judge




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