F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 22 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 04-2200
v. (D.C. Nos. CR-02-2117 JP
and CIV-04-323 JP/ACT)
DOMINIC JARAMILLO, (D.N.M.)
Defendant - Appellant.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, HENRY, and TYMKOVICH, Circuit Judges.
Defendant-Appellant Dominic Jaramillo, a federal prisoner appearing pro
se, seeks a certificate of appealability (“COA”) allowing him to appeal the district
court’s order denying his 28 U.S.C § 2255 motion. Because Mr. Jaramillo has
failed to make a “substantial showing of the denial of a constitutional right” as
required by 28 U.S.C. § 2253(c)(2), we deny his request for a COA and dismiss
his appeal.
Mr. Jaramillo pleaded guilty to aggravated sexual abuse of a child in Indian
Country. The applicable criminal statute prohibits “in the special maritime and
territorial jurisdiction of the United States . . . , knowingly engag[ing] in a sexual
act with another person who has not attained the age of 12 years” and specifies a
maximum sentence of life imprisonment. 18 U.S.C. § 2241(c). Pursuant to the
Sentencing Guidelines, the presentence report calculated Mr. Jaramillo’s offense
level including a 4-point enhancement under U.S.S.G. § 2A3.1(b)(1) for use of
force or threat. At sentencing, the district court agreed and imposed a 151-month
term of imprisonment. As part of his plea agreement, Mr. Jaramillo waived
appeal rights, and he did not appeal his sentence.
In his § 2255 petition, Mr. Jaramillo argued that there was insufficient
evidence that he used threats to coerce his nine year old victim. As a result, he
maintained that the enhancement was erroneous. He also claimed that his counsel
was ineffective for failing to contest the enhancement. Sua sponte, the district
court rejected the applicability of Blakely v. Washington, __ U.S. __, 124 S. Ct.
2531 (2004), to this § 2255 motion.
Ineffective assistance of counsel requires a showing of deficient
performance and prejudice. United States v. Harfst, 168 F.3d 398, 402 (10th Cir.
1999). Assuming, without deciding, that counsel improperly failed to investigate,
explain, or make appropriate objections to the enhancement, Mr. Jaramillo fails to
satisfy the “prejudice” requirement by showing that “there is a reasonable
probability that, but for counsel’s errors, he would not have [received the
enhancement].” Hill v. Lockhart, 474 U.S. 52, 59 (1985); Romero v. Tansy, 46
-2-
F.3d 1024, 1033 (10th Cir. 1995). The PSR and Mr. Jaramillo’s guilty plea and
statements to investigators presented abundant evidence of his use of force,
undercutting his prejudice argument. Though Mr. Jaramillo refuted some of this
evidence (and offered alternative explanations for his conduct) in his request for a
certificate of appealability, the district court’s resolution of this issue is not
reasonably debatable given the argument and evidence before it.
Mr. Jaramillo contends that the enhancement is infirm because he did not
admit the facts relied upon for enhancement, nor were they found by a jury. Of
course, the Supreme Court recently held that the rule announced in Blakely is
applicable to the Sentencing Guidelines. United States v. Booker, __ U.S. __,
125 S. Ct. 738 (2005). In deciding Booker, the Court unequivocally reiterated the
proposition announced in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000),
stating that “[a]ny fact (other than a prior conviction) which is necessary to
support a sentence exceeding the maximum authorized by the facts established by
a plea of guilty or a jury verdict must be admitted by the defendant or proved to a
jury beyond a reasonable doubt.” Booker, 125 S. Ct. at 756. However, Blakely
does not apply to a case like this one that is on collateral review. Schriro v.
Summerlin, 124 S. Ct. 2519, 2522-26 (2004) (concluding that Ring v. Arizona,
536 U.S. 584 (2002) was procedural and did not apply retroactively); United
States v. Price, No. 04-7058, 2005 WL 535361, at *1 (10th Cir. Mar. 8, 2005).
-3-
We DENY Mr. Jaramillo’s request for a COA and DISMISS this appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
-4-