United States v. Mexicano-Aguilar , 201 F. App'x 597 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
October 18, 2006
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 06-2073
(D. Ct. No. CIV-05-0576 RB/DJS)
RICARDO MEXICANO-AGUILAR, (D. N. Mex. )
Defendant - Appellant.
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ORDER DENYING CERTIFICATE OF APPEALABILITY
Before TACHA, Chief Circuit Judge, HARTZ, and TYMKOVICH, Circuit Judges.
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)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument.
Defendant-Appellant Ricardo Mexicano-Aguilar, a federal prisoner proceeding pro
se, seeks a certificate of appealability (“COA”) to appeal from the District Court’s denial
of his habeas corpus petition brought under 28 U.S.C. § 2255. See 28 U.S.C.
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This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. This court generally disfavors the citation of orders
and judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
§ 2253(c)(1) (a petitioner may not appeal the denial of habeas relief under § 2255 unless a
COA is issued). We will issue a COA “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard
requires the petitioner to 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.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted).
In 2004, Mr. Mexicano-Aguilar was convicted under 8 U.S.C. § 1326(a) and (b) of
reentry into the United States following deportation subsequent to a conviction for an
aggravated felony. He was sentenced to 57 months’ imprisonment based, in part, on a 16-
level enhancement under United States Sentencing Guidelines Manual (“U.S.S.G.” or
“Guidelines”) § 2L1.2(b)(1)(A) for a prior crime of violence. A panel of this Court
affirmed his conviction on direct appeal. See United States v. Mexicano-Aguilar, 114
Fed. App’x 365 (10th Cir. 2004) (unpublished).
Mr. Mexicano-Aguilar then filed his § 2255 petition in the District Court, arguing
that he received ineffective assistance of counsel during the sentencing phase.
Specifically, he contends that his counsel was ineffective for failing to argue that his prior
state court conviction for second-degree robbery, which resulted only in a probated
sentence, is not a “crime of violence” within the meaning of U.S.S.G.
§ 2L1.2(b)(1)(A)(ii).
In order to prevail on an ineffective assistance of counsel claim, a habeas petitioner
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must show that his counsel’s conduct “fell below an objective standard of
reasonableness” and that such deficient performance resulted in prejudice to the
defense—that is, “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland v. Washington,
466 U.S. 668, 687–88, 694 (1984). Mr. Mexicano-Aguilar cannot meet this standard.
A “crime of violence” explicitly includes “robbery.” See U.S.S.G. § 2L1.2 cmt.
n.1(B)(iii). Mr. Mexicano-Aguilar argues, however, that because his robbery conviction
resulted only in probation, it cannot be considered a crime of violence. To the contrary,
“U.S.S.G. § 2L1.2(b)(1)(A)(ii) does not require that, to be a ‘crime of violence,’ a prior
conviction result in a sentence of any particular length.” United States v.
Gonzalez-Coronado, 419 F.3d 1090, 1095 (10th Cir. 2005) (holding that an enhancement
under § 2L1.2(b)(1)(A)(ii) is appropriate even when sentence for prior crime was
probation). Because the 16-level enhancement was appropriately applied, counsel’s
failure to raise the issue at sentencing (or on appeal) did not prejudice Mr. Mexicano-
Aguilar.
Mr. Mexicano-Aguilar also argues that the District Court erred in refusing to
permit him to prove the merits of his claim by showing that his counsel failed to discover
that his prior state court conviction resulted only in probation. As noted, however, even
had counsel known and argued this point, there is not a reasonable probability that the
outcome of the proceedings would have been different. Accordingly, we DENY Mr.
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Mexicano-Aguilar’s request for a COA and DISMISS the appeal.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Chief Circuit Judge
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