FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS January 7, 2008
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 07-5137
v. (N.D. of Okla. )
ALFREDO ARRAZOLA-CARRENO, (D.C. Nos. CV-07-362-HDC and
CR-05-117-HDC)
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before HENRY, Chief Judge, TYMKOVICH, and HOLMES, Circuit Judges. **
Alfredo Arrazola-Carreno is a federal prisoner serving a sentence of 105
months after pleading guilty to one count of unlawfully possessing a firearm
under 18 U.S.C. § 922(g)(1). We enforced his plea agreement on direct appeal in
United States v. Arrazola-Carreno, 206 F. App’x 751 (10th Cir. 2006) (per
*
This order is not binding precedent except under the doctrines of law of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.
**
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); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
curiam). Proceeding pro se 1, Arrazola-Carreno now seeks a certificate of
appealability (COA) to challenge the district court’s denial of his motion to
vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. The district
court denied all six of Arrazola-Carreno’s claims and dismissed his motion.
We agree Arrazola-Carreno is not entitled to relief under § 2255 and
therefore DENY his request for a COA.
I.
In 2005, Arrazola-Carreno was indicted on two counts of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Arrazola-Carreno
pleaded guilty to count one in exchange for the government’s dismissal of count
two and support of a downward departure for Arrazola-Carreno at sentencing. At
sentencing, Arrazola-Carreno received 105-months imprisonment, three-years
supervised release, and a $2,000 fine. His prison sentence fell within the
advisory guidelines range and below the statutory maximum of 10 years.
Arrazola-Carreno filed a § 2255 motion with the district court on June 28,
2007. The district court concluded all of Arrazola-Carreno’s arguments lacked
merit and denied the motion. Arrazola-Carreno now seeks a COA from this court
to challenge two of the issues raised below: (1) ineffective assistance of counsel
1
Because Arrazola-Carreno proceeds pro se, we construe his claims
liberally. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991).
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relating to his plea agreement and (2) lack of subject matter jurisdiction over the
indictment because it was not served on him pursuant to the federal rules.
II.
To obtain a COA, a petitioner must make a “substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell,
537 U.S. 322, 327 (2003). This standard is satisfied by demonstrating
“reasonable jurists could debate whether . . . 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).
For substantially the same reasons as the district court, we conclude that
Arrazola-Carreno has failed to make a substantial showing of the denial of a
constitutional right on either of the grounds he raises in his petition.
First, the district court correctly concluded Arrazola-Carreno’s trial counsel
did not render ineffective assistance by advising him to enter into the plea
agreement. Arrazola-Carreno argues he received no benefit from the agreement.
By pleading guilty, however, Arrazola-Carreno received a significant benefit: the
government dropped the second count and he avoided the possibility of conviction
on two counts instead of only one. He obtained, moreover, the benefit of an
acceptance of responsibility reduction at sentencing which he would have lost had
the case proceeded to trial.
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Second, the district court properly found Arrazola-Carreno waived reading
of the indictment at arraignment in accordance with Federal Rule of Criminal
Procedure 10. The trial court had jurisdiction over Arrazola-Carreno’s criminal
case under 18 U.S.C. § 3231. Arrazola-Carreno’s argument to the contrary,
relying on the Foreign Sovereign Immunities Act, is entirely frivolous.
III.
Arrazola-Carreno’s petition for a COA is DENIED.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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