F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        May 25, 2006
                                   TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                      Clerk of Court


 U N ITED STA TES O F A M ER ICA,

                 Plaintiff-Appellee,                    No. 05-2355

          v.                                            (D. of N.M .)
 ED D IE G IO V A N NI D E LEO N -             (D.C. No. CIV-05-982-JP and
 FERNA ND EZ,                                        CR -04-1180-JP)

                 Defendant-Appellant.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before TA CH A, Chief Judge, HA RTZ, and TYM KOVICH, Circuit Judges. **




      Eddie G iovanni De Leon-Fernandez, a federal prisoner, seeks a Certificate

of Appealability (COA) to appeal the denial of his M otion To Vacate Or Reduce

Sentence pursuant to 28 U .S.C. § 2255. Since he appears pro se, we construe D e

Leon-Fernandez’s pleadings liberally. See Cum mings v. Evans, 

, 613




      *
         This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         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.
(10th Cir. 1998). W e agree with the district court that a COA should not issue

because De Leon-Fernandez has not made a substantial showing of the denial of a

constitutional right. Accordingly, we DENY the COA and DISM ISS his appeal.

                                  I. Background

      In 1996, De Leon-Fernandez was convicted of dealing in heroin, an

aggravated felony. He was deported from the United States to Guatemala in

A ugust of 2001. A fter he returned illegally to the United States, De

Leon-Fernandez was charged with re-entry of a deported alien previously

convicted of an aggravated felony in violation of 8 U.S.C. §§ 1326(a)(1)-(2) and

(b)(2). W ith assistance of trial counsel, he pleaded guilty to this charge and was

sentenced to 46 months of confinement followed by two years of supervised

release.

      De Leon-Fernandez, appearing pro se, filed a M otion To Vacate Or Reduce

Sentence pursuant to 28 U.S.C. § 2255 in United States District Court for the

District of New M exico. In the motion, De Leon-Fernandez claimed that his

constitutional rights had been violated by the ineffective assistance of his counsel.

Specifically, De Leon-Fernandez asserted that his law yer should have argued for a

lower sentence under Apprendi v. New Jersey, 

(2000), Blakely v.

Washington, 

(2004), and United States v. Booker, 

(2005). The district court denied De Leon-Fernandez's petition based on the fact

that no showing was made that his sentencing would have been different if his

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attorney had made the arguments raised in his § 2255 motion. The district court

also denied his request for a COA. De Leon-Fernandez raises the same issues on

appeal to this court.

                                    II. Analysis

      A circuit court may issue a certificate of appealability “only if the applicant

has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). W here a district court “has rejected the constitutional claims on the

merits,” an applicant meets this standard by “demonstrat[ing] that reasonable

jurists would find the district court's assessment of the constitutional claims

debatable or wrong.” M iller-El v. Cockrell, 

, 338 (2003) (quoting

Slack v. M cDaniel, 529 U .S. 473, 484 (2000)). In conducting our analysis, we

need only engage in “an overview of the claims in the . . . petition and a general

assessment of their merits” rather than “full consideration of the factual or legal

bases adduced in support of the claims.” M 

.

      R easonable jurists w ould not find the district court's ruling on De

Leon-Fernandez's constitutional claims disputable or incorrect. The district court

ruled that Apprendi and Blakely could not affect De Leon-Fernandez’s sentence

because they apply to state rather than federal sentences. See 

. The district court also held that Booker could not change De Leon-

Fernandez’s sentence because its holding was retroactive only to cases on direct

review. See 

. And we have held that Booker is not

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retroactive in cases on collateral review. United States v. Bellamy, 

, 1188 (10th Cir. 2005). Reasonable jurists therefore would not debate

whether the district court's analysis was “contrary to . . . clearly established

Federal law.” See 28 U.S.C. § 2254(d)(1); Strickland v. Washington, 

, 697 (1984). A ccordingly, we adopt the district court’s reasoning.

                                   III. Conclusion

      For these reasons, De Leon-Fernandez has failed to make a sufficient

show ing that he is entitled to a COA. Accordingly, we DENY De

Leon-Fernandez's application for a COA and DISM ISS this appeal.

                                                 Entered for the Court



                                                 Timothy M . Tymkovich
                                                 Circuit Judge




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