United States v. Castillo-Olivas , 167 F. App'x 71 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 16, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 05-3208
v. (D.C. Nos. 05-CV-3065-WEB and
04-CR-10007-WEB)
JORGE CASTILLO-OLIVAS, (D. Kan.)
Defendant - Appellant.
ORDER
Before HENRY, McKAY, and EBEL, Circuit Judges.
This is an appeal under 28 U.S.C. § 2255. Mr. Castillo-Olivas pleaded
guilty to violating 8 U.S.C. § 1326(a) and (b)–re-entry after deportation following
conviction for an aggravated felony. The sentencing court calculated his
sentencing range to be forty-one to fifty-one months’ imprisonment and on
July 28, 2004, sentenced Mr. Castillo-Olivas to forty-one months’ imprisonment.
One condition of Mr. Castillo-Olivas’ plea agreement waived his “right to
challenge a sentence or manner in which it was determined in any collateral
attack, including, but not limited to, a motion brought under [28 U.S.C.
§ 2255] . . . .” Memorandum and Order, 2 (D. Kan. Mar. 10, 2005). Despite this
explicit waiver, Mr. Castillo-Olivas filed a § 2255 petition and argued that the
waiver should not apply because it was not knowing and voluntary and because he
suffered from ineffective assistance of counsel.
The district court, however, found that the sentencing court conducted a
colloquy with Mr. Castillo-Olivas sufficient to overcome any concerns regarding
the knowing and voluntary nature of the plea. And as to the ineffective assistance
of counsel claim, Mr. Castillo-Olivas specifically alleges that his counsel failed to
anticipate and inform him that the Supreme Court was considering Blakely v.
Washington, 542 U.S. 296 (2004), which was decided three months after Mr.
Castillo-Olivas was sentenced. While ineffective assistance of counsel claims in
connection to entering a plea agreement are not waived by the plea agreement, we
agree with the trial court that the failure to anticipate Blakely and then United
States v. Booker, 543 U.S. 220 (2005), does not constitute ineffective assistance
of counsel. See, e.g., United States v. Gonzalez-Lerma, 71 F.3d 1537, 1542 (10th
Cir. 1995) (“Counsel’s assistance is not ineffective simply because counsel fails
to base its decisions on laws that might be passed in the future.”). The district
court then denied Mr. Castillo-Olivas a certificate of appealability.
To qualify for a certificate of appealability, Mr. Castillo-Olivas must make
a “substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2) (1994). To meet this burden, he must demonstrate “that reasonable
jurists could debate whether (or, for that matter, agree that) the petition should
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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) (quotation omitted).
We have carefully reviewed Mr. Castillo-Olivas’ brief, the district court’s
disposition, and the record on appeal. Nothing in the facts, the record on appeal,
or Petitioner’s filing raises an issue which meets our standard for the grant of a
certificate of appealability. For substantially the same reasons set forth by the
district court in its March 10, 2005 Memorandum and Order, we cannot say “that
reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner.” Id.We DENY Mr. Castillo-Olivas’ request for a certificate of appealability
and DISMISS the appeal.
Entered for the Court
Monroe G. McKay
Circuit Judge
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