FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 16, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-1191 (D.C. No. 1:17-CV-01921-CMA JORGE ALFREDO GUIJARRO, and 1:12-CR-00038-CMA-4) (D. Colo.) Defendant - Appellant. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before PHILLIPS, McKAY, and O’BRIEN, Circuit Judges. _________________________________
Jorge Alfredo Guijarro, a federal prisoner proceeding pro se1, seeks a
certificate of appealability (COA) to appeal the district court’s denial of his 28
U.S.C. § 2255 motion. Exercising jurisdiction under 28 U.S.C. § 1291, we deny Mr.
Guijarro’s motion for a COA and dismiss this appeal.
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 We construe Mr. Guijarro’s pleadings liberally but we will not act as his advocate. United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009). BACKGROUND
On February 2, 2016, Mr. Guijarro pleaded guilty to conspiracy to distribute
cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A)(ii)(II). As part
of his plea agreement, Mr. Guijarro waived his right to appeal and to collaterally
attack his conviction or sentence. The waiver, however, contained an exception. The
exception permits Mr. Guijarro to challenge his conviction on the ground that he was
denied effective assistance of counsel.
On May 31, 2016, the district court held Mr. Guijarro’s sentencing hearing. At
the hearing, the court calculated Mr. Guijarro’s base offense level as 33 and his
criminal history category as II. Mr. Guijarro’s corresponding advisory-guideline
sentencing range was 151 to 188 months of imprisonment. The court, however,
sentenced Mr. Guijarro to 120-months imprisonment after granting the government’s
U.S.S.G. § 5K1.1 motion for a downward departure.2
On August 9, 2017, Mr. Guijarro filed a 28 U.S.C. § 2255 motion in the
district court requesting that his sentence be vacated. In support, Mr. Guijarro made
two arguments. First, Mr. Guijarro claimed that the sentencing court miscalculated
his base offense level. Second, Mr. Guijarro claimed that he was denied effective
assistance of counsel. Regarding his IAC claim, Mr. Guijarro argued that his counsel
2 Despite the appellate waiver, Mr. Guijarro filed a direct appeal. He then moved to voluntarily dismiss his appeal. On September 30, 2016, this court granted Mr. Guijarro’s motion and issued the mandate on the same day. Less than one year later, Mr. Guijarro filed his § 2255 motion in the district court. Accordingly, Mr. Guijarro’s motion is timely under 28 U.S.C. § 2255(f)(1). 2 was ineffective by failing to investigate and present mitigating evidence of his
mental-health issues.
The district court denied Mr. Guijarro’s § 2255 motion. The court held that the
sentencing court had correctly calculated Mr. Guijarro’s base offense level. The court
also held that counsel’s performance at sentencing was reasonable, and, even if
counsel’s performance was not reasonable, Mr. Guijarro was incapable of
demonstrating that he was prejudiced by any deficient performance. Notably, the
court observed that Mr. Guijarro’s sentence of 120 months of imprisonment was the
statutory minimum, and any potentially mitigating evidence—i.e., Mr. Guijarro’s
mental-health issues—“would not have rendered a different result.” R. vol. I at 68
n.4.
Mr. Guijarro filed a timely notice of appeal. We remanded the case back to the
district court to decide, in the first instance, whether Mr. Guijarro was entitled to a
COA. The district court promptly issued an order denying Mr. Guijarro a COA. Mr.
Guijarro now moves this court for a COA.
DISCUSSION
To obtain a COA, Mr. Guijarro must make a “substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). Specifically, Mr. Guijarro must
show that “reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). We have closely examined the pleadings and the record in this case and
determine that Mr. Guijarro has not made such a showing.
3 Mr. Guijarro presses two arguments on appeal. First, Mr. Guijarro argues that
reasonable jurists could debate whether his plea of guilty was knowingly and
intelligently made. But Mr. Guijarro did not raise this issue below. Absent
extraordinary circumstances, we will not consider arguments raised for the first time
on appeal. United States v. Banks, 355 F. App’x 123, 126 (10th Cir. 2009) (citing
Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1143 (10th Cir. 2009)). We do not
believe that this case presents extraordinary circumstances.
Mr. Guijarro provides no evidence to support his conclusory assertion that
“reasonable jurists would debate whether his plea of guilty was intelligent and/or
knowingly and voluntarily made.” Appellant’s Mot. for COA at 4. In fact, at his
change of plea hearing, Mr. Guijarro told the court that he was competent, that he
understood the consequences of pleading guilty, and that he was pleading guilty on
his own accord. We see no reason to doubt these statements and, accordingly, fail to
identify any extraordinary circumstances that would justify our consideration of an
issue that Mr. Guijarro did not raise below.
Second, Mr. Guijarro argues that the district court erred when it denied his
IAC claim. To prove an IAC claim, Mr. Guijarro must show two things: 1) that
counsel’s representation was deficient; and 2) that “but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland v.
Washington, 466 U.S. 668, 687-694 (1984). Failure to prove either of these factors
means that Mr. Guijarro’s claim must be denied. Id. at 687.
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 16, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-1191 (D.C. No. 1:17-CV-01921-CMA JORGE ALFREDO GUIJARRO, and 1:12-CR-00038-CMA-4) (D. Colo.) Defendant - Appellant. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before PHILLIPS, McKAY, and O’BRIEN, Circuit Judges. _________________________________
Jorge Alfredo Guijarro, a federal prisoner proceeding pro se1, seeks a
certificate of appealability (COA) to appeal the district court’s denial of his 28
U.S.C. § 2255 motion. Exercising jurisdiction under 28 U.S.C. § 1291, we deny Mr.
Guijarro’s motion for a COA and dismiss this appeal.
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. 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. 1 We construe Mr. Guijarro’s pleadings liberally but we will not act as his advocate. United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009). BACKGROUND
On February 2, 2016, Mr. Guijarro pleaded guilty to conspiracy to distribute
cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A)(ii)(II). As part
of his plea agreement, Mr. Guijarro waived his right to appeal and to collaterally
attack his conviction or sentence. The waiver, however, contained an exception. The
exception permits Mr. Guijarro to challenge his conviction on the ground that he was
denied effective assistance of counsel.
On May 31, 2016, the district court held Mr. Guijarro’s sentencing hearing. At
the hearing, the court calculated Mr. Guijarro’s base offense level as 33 and his
criminal history category as II. Mr. Guijarro’s corresponding advisory-guideline
sentencing range was 151 to 188 months of imprisonment. The court, however,
sentenced Mr. Guijarro to 120-months imprisonment after granting the government’s
U.S.S.G. § 5K1.1 motion for a downward departure.2
On August 9, 2017, Mr. Guijarro filed a 28 U.S.C. § 2255 motion in the
district court requesting that his sentence be vacated. In support, Mr. Guijarro made
two arguments. First, Mr. Guijarro claimed that the sentencing court miscalculated
his base offense level. Second, Mr. Guijarro claimed that he was denied effective
assistance of counsel. Regarding his IAC claim, Mr. Guijarro argued that his counsel
2 Despite the appellate waiver, Mr. Guijarro filed a direct appeal. He then moved to voluntarily dismiss his appeal. On September 30, 2016, this court granted Mr. Guijarro’s motion and issued the mandate on the same day. Less than one year later, Mr. Guijarro filed his § 2255 motion in the district court. Accordingly, Mr. Guijarro’s motion is timely under 28 U.S.C. § 2255(f)(1). 2 was ineffective by failing to investigate and present mitigating evidence of his
mental-health issues.
The district court denied Mr. Guijarro’s § 2255 motion. The court held that the
sentencing court had correctly calculated Mr. Guijarro’s base offense level. The court
also held that counsel’s performance at sentencing was reasonable, and, even if
counsel’s performance was not reasonable, Mr. Guijarro was incapable of
demonstrating that he was prejudiced by any deficient performance. Notably, the
court observed that Mr. Guijarro’s sentence of 120 months of imprisonment was the
statutory minimum, and any potentially mitigating evidence—i.e., Mr. Guijarro’s
mental-health issues—“would not have rendered a different result.” R. vol. I at 68
n.4.
Mr. Guijarro filed a timely notice of appeal. We remanded the case back to the
district court to decide, in the first instance, whether Mr. Guijarro was entitled to a
COA. The district court promptly issued an order denying Mr. Guijarro a COA. Mr.
Guijarro now moves this court for a COA.
DISCUSSION
To obtain a COA, Mr. Guijarro must make a “substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). Specifically, Mr. Guijarro must
show that “reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). We have closely examined the pleadings and the record in this case and
determine that Mr. Guijarro has not made such a showing.
3 Mr. Guijarro presses two arguments on appeal. First, Mr. Guijarro argues that
reasonable jurists could debate whether his plea of guilty was knowingly and
intelligently made. But Mr. Guijarro did not raise this issue below. Absent
extraordinary circumstances, we will not consider arguments raised for the first time
on appeal. United States v. Banks, 355 F. App’x 123, 126 (10th Cir. 2009) (citing
Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1143 (10th Cir. 2009)). We do not
believe that this case presents extraordinary circumstances.
Mr. Guijarro provides no evidence to support his conclusory assertion that
“reasonable jurists would debate whether his plea of guilty was intelligent and/or
knowingly and voluntarily made.” Appellant’s Mot. for COA at 4. In fact, at his
change of plea hearing, Mr. Guijarro told the court that he was competent, that he
understood the consequences of pleading guilty, and that he was pleading guilty on
his own accord. We see no reason to doubt these statements and, accordingly, fail to
identify any extraordinary circumstances that would justify our consideration of an
issue that Mr. Guijarro did not raise below.
Second, Mr. Guijarro argues that the district court erred when it denied his
IAC claim. To prove an IAC claim, Mr. Guijarro must show two things: 1) that
counsel’s representation was deficient; and 2) that “but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland v.
Washington, 466 U.S. 668, 687-694 (1984). Failure to prove either of these factors
means that Mr. Guijarro’s claim must be denied. Id. at 687.
4 Here, it is inarguable that Mr. Guijarro cannot satisfy the second factor. Even
if we assume Mr. Guijarro’s counsel was deficient—which we do not believe was the
case—we do not see how Mr. Guijarro was prejudiced. As the district court noted,
Mr. Guijarro was sentenced to the statutory minimum of 120-months imprisonment.
While the government filed a § 5K1.1 motion for a downward departure, this did not
permit the court to sentence Mr. Guijarro below the statutory minimum. See
Melendez v. United States, 518 U.S. 120, 129-130 (1996) (holding that a § 5K1.1(a)
motion did not authorize the district court to sentence defendant below statutory
minimum). Without another motion from the government, the sentencing court could
not have given Mr. Guijarro a lower sentence. See 21 U.S.C. § 841(b)(1)(A)(ii)(II).
No amount of mitigating evidence would change this result. Accordingly, we do not
believe any reasonable jurist would debate the district court’s resolution of this issue
and we deny Mr. Guijarro’s request for a COA.
CONCLUSION
For the reason detailed above, we deny Mr. Guijarro’s request for a COA and
dismiss this appeal. Additionally, Mr. Guijarro’s motion for appointment of counsel
is denied.
Entered for the Court
Gregory A. Phillips Circuit Judge