United States v. Acevedo , 7 F. App'x 850 ( 2001 )


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  •                                                                           F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    MAR 22 2001
    FOR THE TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                   No. 00-3177
    (D.C. No. 00-CV-3143-DES)
    FERNANDO ACEVEDO,                                      (D. Kan.)
    Defendant-Appellant.
    ORDER AND JUDGMENT            *
    Before SEYMOUR, BALDOCK,              and LUCERO , Circuit Judges.
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist 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 Fernando Acevedo, appearing pro se, seeks a certificate of
    appealability (COA) to appeal the district court’s denial of his 
    28 U.S.C. § 2255
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The 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.
    motion to vacate, set aside or correct his criminal sentence. In order for this court
    to grant a COA, defendant must make a “substantial showing of the denial of a
    constitutional right.” 
    28 U.S.C. § 2253
    (c)(2). This showing can be made if
    defendant demonstrates that the issues are debatable among jurists, that a court
    could resolve the issues differently, or that the questions presented deserve
    further proceedings.   Slack v. McDaniel , 
    529 U.S. 473
    , 483-84 (2000). Because
    Mr. Acevedo fails to make the requisite showing, we dismiss this appeal.
    Mr. Acevedo pled guilty on August 24, 1999, to conspiracy to distribute in
    excess of 100 kilograms of marijuana in violation of 
    21 U.S.C. § 846
    . He was
    sentenced to thirty-seven months’ imprisonment in the Federal Bureau of Prisons
    and did not file a direct appeal.
    On April 23, 2000, he filed his § 2255 motion, asserting claims based on
    his status as a deportable alien. Because he is not a United States citizen, Mr.
    Acevedo is subject to deportation upon his release from prison. As a result of his
    deportation status, Mr. Acevedo is ineligible for confinement in a minimum
    security prison, cannot participate in the Bureau of Prisons’ drug rehabilitation
    program, and is ineligible for early release. Defendant claims these restrictions
    cause his conditions of confinement to be harsher because of his status as an
    alien. He contends, therefore, that his attorney was ineffective for failing to seek
    a downward departure under USSG § 5K2.0, which permits a sentencing court to
    -2-
    depart from the applicable guideline range if there exist mitigating circumstances
    of a kind not adequately taken into consideration by the guidelines. He also
    claims the disparate treatment of deportable aliens violates his equal protection
    rights. 1
    The district court held that defendant was not entitled to habeas relief on
    his claim of ineffective assistance of counsel because he had not shown that his
    defense was prejudiced by any deficiency in his trial attorney’s performance.        See
    Strickland v. Washington , 
    466 U.S. 668
    , 687, 694 (1984). It also rejected
    defendant’s equal protection claim on the basis that the Bureau of Prisons’
    policies concerning deportable aliens is rationally related to legitimate safety
    concerns.   2
    Where, as here, the district court rejects the constitutional claims on
    the merits, defendant “must demonstrate that reasonable jurists would find [its]
    1
    Mr. Acevedo also contends in his application for COA that his conviction
    should be reversed because the government failed to advise him of his rights
    under the Vienna Convention to inform Mexican consular officials of his arrest
    and detention. We do not consider this issue, however, because he failed to raise
    it in his § 2255 motion to the district court. See United States v. Cook , 
    997 F.2d 1312
    , 1316 (10th Cir. 1993).
    2
    Mr. Acevedo’s equal protection challenge to the differential treatment he
    receives as a deportable alien in the federal prison system is not properly brought
    under § 2255, but should have been filed under 
    28 U.S.C. § 2241
    , because it
    concerns the execution, rather than the imposition, of his sentence.  See McIntosh
    v. United States Parole Comm’n , 
    115 F.3d 809
    , 811 (10th Cir. 1997) (“Petitions
    under § 2241 are used to attack the execution of a sentence, in contrast to . . .
    § 2255 proceedings, which are used to collaterally attack the validity of a
    conviction and sentence.” (citations omitted)).
    -3-
    assessment of the constitutional claims debatable or wrong.”     Slack , 
    529 U.S. at 484
    . Because we find the district court’s assessment of Mr. Acevedo’s claims
    neither debatable nor wrong, we deny his application for COA and DISMISS the
    appeal.
    Entered for the Court
    Bobby R. Baldock
    Circuit Judge
    -4-
    

Document Info

Docket Number: 00-3177

Citation Numbers: 7 F. App'x 850

Judges: Baldock, Lucero, Seymour

Filed Date: 3/22/2001

Precedential Status: Non-Precedential

Modified Date: 8/3/2023