FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS March 31, 2008
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 07-3247
v. (D. Kansas)
(D.C. No. 03-CR-10129-JTM)
MARSHALL D. SEITTER,
Defendant - Appellant.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before MURPHY, SEYMOUR, and McCONNELL, Circuit Judges.
Marshall D. Seitter’s sentence of probation was revoked, and a term of
imprisonment was imposed, after Seitter violated the terms of his probation.
Seitter challenges his sentence pursuant to 28 U.S.C. § 2255. He argues the
district court erroneously based the term of imprisonment solely on his need for
rehabilitation, in violation of 28 U.S.C. § 3582(a), and his counsel was
constitutionally deficient. We conclude a certificate of appealability (“COA”)
cannot be granted because Seitter has not made “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Accordingly, this court
DENIES Seitter’s implied request for a COA and DISMISSES the appeal.
I. Background
Seitter received a sentence of probation after pleading guilty to receipt of
child pornography. The district court revoked his probation after it found Seitter
was in violation of its terms and conditions and sentenced him to twenty-eight
months’ imprisonment. The district court based the length of the term of
imprisonment on the availability of a sexual offender treatment program in prison.
Seitter, however, was not admitted to the treatment program because the program
had placed a moratorium on new admissions in preparation for changes under the
Adam Walsh Act. Pub. L. No. 109-248, 120 Stat. 587 (2006).
Seitter did not appeal the sentence, but challenged it under 28 U.S.C.
§ 2255. He argued before the district court, in relevant part, that the sentencing
court had erred because it had fashioned the length of his term of imprisonment
solely for rehabilitative purposes. Seitter argued the district court violated 18
U.S.C. § 3582(a), which should have applied to his sentencing. Thus, he argued,
he was entitled to relief under § 2255(a) because his sentence was “imposed in
violation of the Constitution or laws of the United States.”
The district court denied Seitter’s § 2255 motion. Operating under the
assumption Seitter’s sentencing flowed from a revocation of supervised release,
the district court determined Tenth Circuit case law established § 3582(a) did not
apply to revocations of supervised release. See United States v. Tsosie, 376 F.3d
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1210, 1217 (10th Cir. 2004). Seitter’s sentence, however, actually flowed from a
revocation of probation rather than a revocation of supervised release. 1
II. Discussion
Seitter appeals the denial of his § 2255 motion, arguing § 3582(a) does
apply to the imposition of a term of imprisonment after the revocation of
probation and the district court erred when it determined the length of his
sentence solely for rehabilitative purposes. He also alleges his counsel was
constitutionally ineffective for failing to raise this argument at his sentencing.
To be entitled to a certificate of appealability, Seitter must make “a
substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). To make the requisite showing, he must 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.” Miller-El
v. Cockrell, 537 U.S. 322, 336 (2003) (quotations omitted). In deciding whether
Seitter has carried his burden, this court undertakes “a preliminary, though not
definitive, consideration of the [legal] framework” applicable to each of his
claims. Id. at 338. Although Seitter need not demonstrate that his appeal will
1
The district court was led to conclude the proceeding was a revocation of
supervised release both by Seitter, who referred both to supervised release and
probation in his motion, and the government, which labeled the proceeding as a
revocation of supervised release.
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succeed to be entitled to a certificate of appealability, he must “prove something
more than the absence of frivolity or the existence of mere good faith.” Id. at
337, 338 (quotations omitted).
A. Section 3582(a) Claim
Seitter’s § 3582(a) claim asserts he was sentenced in violation of the laws
of the United States. Statutory claims are cognizable in the district court under
§ 2255. A certificate of appealability, however, can only be granted if the movant
has made “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2) (emphasis added). Because this issue does not have
constitutional dimensions, we cannot grant a certificate of appealability,
regardless of the merits of the argument. United States v. Taylor, 454 F.3d 1075,
1079 (10th Cir. 2006) (“[N]o matter how clearly the § 2255 movant can show that
the district court erred in denying a statutory claim in his habeas petition, he is
not entitled to a COA to have his claim heard on appeal.”); United States v.
Gordon, 172 F.3d 753, 755 (10th Cir. 1999).
B. Ineffective Assistance of Counsel
Seitter alleges his sentence was constitutionally defective because his
counsel provided ineffective assistance when he failed to raise the issue of
§ 3582(a)’s applicability to his sentencing hearing. Seitter did not, however,
present this argument in his motion before the district court. Seitter argues his
brief statement in his motion that “defense counsel glaringly failed to raise [the
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§ 3582(a) issue]” provided sufficient notice of his intent to raise an ineffective
assistance claim. We cannot agree. This statement was without support or
context sufficient to alert the district court that a Sixth Amendment claim was
presented. “[V]ague, arguable references to a point in the district court
proceedings do not preserve the issue on appeal.” Lyons v. Jefferson Bank &
Trust, 994 F.2d 716, 721 (10th Cir. 1993) (alterations and quotation omitted).
This court generally does not address arguments presented for the first time on
appeal and we see no reason to do so here. United States v. Mora, 293 F.3d 1213,
1216 (10th Cir. 2002). 2
III. Conclusion
For the reasons stated above, this court DENIES Seitter a certificate of
appealability and DISMISSES the appeal. In so holding we express no opinion
on whether a 60(b) motion urging the district court to reconsider its decision on
the § 2255 motion based on a misunderstanding of the nature of the underlying
2
Further, to prevail on this claim, Seitter must demonstrate his “counsel’s
representation fell below an objective standard of reasonableness.” Strickland v.
Washington, 466 U.S. 668, 688 (1984). To prevail under Strickland, “a petitioner
must show that his trial counsel committed serious errors in light of prevailing
professional norms.” United States v. Mora, 293 F.3d 1213, 1216 (10th Cir.
2002) (quotation omitted). The case law concerning § 3582(a)’s application to a
revocation of probation is far from settled, with no circuit court addressing the
question directly. Based on the extant nature of the case law, Seitter’s counsel
did not fall below the prevailing professional norms in failing to raise the issue.
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proceedings would be considered a “true” 60(b) motion. Gonzalez v. Crosby, 545
U.S. 524, 532 (2005).
ENTERED FOR THE COURT
Elisabeth A. Shumaker, Clerk
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