FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 30, 2014
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 13-6267
(D.C. No. 5:13-CV-00568-HE)
JOSE ANGEL GONZALEZ- (W.D. Okla.)
GONDARILLA,
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before HARTZ, McKAY, and MATHESON, Circuit Judges.
Appellant, a federal prisoner proceeding pro se, seeks a certificate of appealability
to appeal the district court’s denial of his 28 U.S.C. § 2255 motion for habeas relief.
Following a jury trial, Appellant was convicted of three drug-related offenses. He
was sentenced to a total of 100 months’ incarceration and four years of supervised
release. He did not file a direct appeal. Appellant claimed in his § 2255 motion that he
was denied the effective assistance of counsel because he did not receive, in the
calculation of his guideline sentence, a two-level reduction under USSG § 2D1.1(b)(16).
*
This order is not binding precedent except under the doctrines of law of the case,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.
This provision calls for a two-level reduction for defendants who meet all of the criteria
set forth in USSG § 5C1.2, the “safety valve” provision. Among other things, USSG §
5C1.2(a)(5) requires a defendant to “truthfully provide[] to the Government all
information and evidence the defendant has concerning the offense or offenses that were
part of the same course of conduct or of a common scheme or plan.” The district court
concluded Appellant was not entitled to this reduction because it was undisputed, based
on the government’s submissions and his attorney’s affidavit, that Appellant did not
cooperate with the government in this manner. The district court accordingly denied the
habeas petition.
Our test for granting a certificate of appealability is not whether the district court’s
decision was correct, but whether reasonable jurists could debate whether it was correct.
Slack v. McDaniel, 529 U.S. 473, 484 (2000). After reviewing the pleadings and the
record on appeal, we conclude reasonable jurists would not debate the district court’s
judgment that Appellant did not cooperate with the prosecution and was accordingly
ineligible for safety-valve relief.
In his application for a certificate of appealability, Appellant raises an additional
challenge to the calculation of his sentence. However, this issue was not raised in
Appellant’s § 2255 motion, and we will “adhere to our general rule against considering
issues for the first time on appeal.” United States v. Viera, 674 F.3d 1214, 1220 (10th
Cir. 2012).
We DENY Appellant’s request for a certificate of appealability and DISMISS the
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appeal. Appellant’s motion to proceed in forma pauperis on appeal is GRANTED.
ENTERED FOR THE COURT
Monroe G. McKay
Circuit Judge
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