FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                                    TENTH CIRCUIT                            May 12, 2014

                                                                         Elisabeth A. Shumaker
UNITED STATES OF AMERICA,                                                    Clerk of Court
            Plaintiff – Appellee,                             No. 13–3324
                                                   (D.C. Nos. 2:13-CV-02441-JWL and
v.                                                    2:09-CR-20119-JWL-JPO-11)
RICARDO LIMON, a/k/a Gordo,                                     (D. Kan.)

           Defendant – Appellant.


             ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.


     After pleading guilty to conspiracy to distribute and possess with intent to distribute

more than 5 kilograms of a mixture or substance containing a detectable amount of

cocaine, more than 50 grams of methamphetamine, and detectable amounts of marijuana,

Ricardo Limon was sentenced to 235 months in federal prison. Limon appealed his

sentence and we affirmed. See United States v. Limon, 483 Fed. Appx. 522 (10th Cir.

2012) (unpublished). Limon then filed a motion under 18 U.S.C. § 2255 to set aside,

correct, or vacate his sentence, which the district court denied. Proceeding pro se, Limon

now attempts to appeal the district court’s order, but in order to do so a certificate of

appealability (COA) must issue. See 28 U.S.C. § 2253(c)(1)(B); United States v.


     *
     This order and judgment is not binding precedent except under the doctrines of law
of the case, claim preclusion, and issue preclusion. It may be cited, however, for its
persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth
Circuit Court Rule 32.1.
Gonzales, 

, 1241 (10th Cir. 2010). Like the district court, we cannot grant

Limon’s request for a COA even though we review his filings liberally. See Lewis v.

C.I.R., 

, 1273 n.2 (10th Cir. 2008). We therefore dismiss this appeal.

    We will only issue a COA where the movant makes “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This, in turn, requires a

demonstration that “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, 

, 484 (2000)

(internal quotation marks omitted). Put another way, our relatively straightforward task is

to assess whether “reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong.” Miller-El v. Cockrell, 

, 338

(2003). If for procedural reasons the district court never reaches the merits of the

constitutional claims, however, it must be “debatable whether the district court was

correct in its procedural ruling,” and also “debatable whether the petition states a valid

claim of the denial of a constitutional right.” 

.

    In his § 2255 motion, Limon asserts violations of his constitutional rights under the

Fifth, Sixth, and Eighth Amendments. He also challenges the validity of his sentence on

non-constitutional grounds, claiming that the sentencing court unlawfully presumed his

Guidelines sentence to be reasonable, improperly calculated his base offense level,

wrongfully imposed two sentencing enhancements, and otherwise failed to adhere to 18

U.S.C. § 3553.




                                            -2-
    At the outset, we must deny a COA for all of Limon’s non-constitutional claims

because, while they assert violations of federal law, they do not assert the denial of a

constitutional right. See United States v. Gordon, 

, 754 (10th Cir. 1999)

(“Petitions may be filed in district court alleging violations of the Constitution or federal

law. The claims may only be appealed, however, if they involve the denial of

constitutional rights.”) (third emphasis added). What’s more, we previously addressed the

propriety of the district court’s enhancement for obstruction of justice on direct appeal.

See Limon, 483 Fed. Appx. at 524–25. The district court was therefore correct in refusing

to consider this claim for procedural reasons. See United States v. Warner, 

,

291 (10th Cir. 1994) (refusing to consider issues under § 2255 that we “previously

considered and disposed of . . . on direct appeal”).

    As for the three constitutional claims, we first note that Limon failed to raise them

before commencing these § 2255 proceedings. Under procedural default principles,

§ 2255 motions “are not available to test the legality of matters which should have been

raised on direct appeal.” United States v. Cook, 

, 1320 (10th Cir. 1993)

(citing United States v. Frady, 

(1982)). But the government failed to raise

this procedural bar, and the district court chose not to enforce it sua sponte. We therefore

review the district court’s disposition on the merits.

    Limon does not argue that the district court’s assessment of the merits of his

constitutional claims was debatable or wrong and we find nothing to justify the issuance

of a COA in undertaking our own review. First, reasonable jurists could not debate the

district court’s resolution of the Fifth-Amendment claim. Limon bases this claim on the


                                            -3-
sentencing court’s denial of his request for a downward adjustment for acceptance of

responsibility. As far as we can tell, he argues that the sentencing court applied the

applicable Sentencing Guideline in a way that violated his right against self-

incrimination. The district court got it right, however, in ruling that the denial of this type

of downward adjustment is “not a penalty or enhancement of sentence implicating the

Fifth Amendment.” R. vol. 1, at 123; see United States v. Anderson, 

, 981

(10th Cir. 1994) (“[D]enial of a U.S.S.G. § 3E1.1 downward adjustment is not a penalty

or an enhancement of sentence implicating the Fifth Amendment.”)

    Second, reasonable jurists could not debate the district court’s resolution of Limon’s

Sixth Amendment claim under Alleyne v. United States, 

(2013). As the

district court concluded, Alleyne does not apply retroactively to cases on collateral

review. In re Payne, 

, 1029 (10th Cir. 2013). And even if it did, the

sentencing court did not find facts that increased the statutory sentencing range so as to

violate Limon’s Sixth-Amendment rights. See 

(holding that

the Sixth Amendment provides defendants with the right to have a jury find those “facts

that increase the prescribed range of penalties to which a criminal defendant is

exposed.”). To the contrary, the sentencing court imposed a sentence within the

prescribed statutory range of ten years to life imprisonment, based on the quantity of

drugs charged under Count One of the superseding indictment—to which Limon pleaded

guilty. See 21 U.S.C. § 841(b)(1)(A)(ii)(II). “We have long recognized that broad

sentencing discretion [within established limits], informed by judicial factfinding, does

not violate the Sixth Amendment.” 

.


                                             -4-
    Third, we do not doubt the district court’s resolution of Limon’s Eighth-Amendment

claim—nor do we think reasonable jurists could find it debatable. With this claim, Limon

asserts that his sentence is so grossly disproportionate to the offense committed that it

violates the Eighth Amendment’s prohibition on cruel and unusual punishments. The

district court rejected this claim because Limon’s 235-month sentence was well within

the statutory limits and because Limon had failed to show constitutional

disproportionality to the severity of the drug offense of which he had been convicted.

Again, Limon pleaded guilty to conspiracy to distribute and possess with intent to

distribute more than 5 kilograms of a mixture or substance containing a detectable

amount of cocaine, more than 50 grams of methamphetamine, and detectable amounts of

marijuana. On the record before us, we think there is no room for debate; Limon’s case is

simply not of the “extraordinary” variety for which the gross disproportionality principle

is reserved. Lockyer v. Andrade, 

, 77 (2003); see Ewing v. California, 

, 21 (2003) (“[O]utside the context of capital punishment, successful challenges to

the proportionality of particular sentences have been exceedingly rare.”); see also

Harmelin v. Michigan, 

, 959-60 (1991) (“Although a sentence of life

imprisonment without parole is the second most severe penalty permitted by law, it is not

grossly disproportionate to Harmelin’s crime of possessing more than 650 grams of

cocaine.”)

    Finally, and for the first time, Limon raises claims for ineffective assistance of trial

and appellate counsel. He argues that his lawyers were ineffective in failing to

sufficiently challenge the obstruction-of-justice enhancement on various grounds.


                                           -5-
Nothing in Limon’s § 2255 motion can be construed as raising such claims. Accordingly,

“we find no reason to deviate from the general rule that we do not address arguments

presented for the first time on appeal,” United States v. Mora, 

, 1216 (10th

Cir. 2002), and decline to issue a COA on these issues.

    Based on the foregoing, we do not believe Limon has made a substantial showing of

the denial of a constitutional right. We therefore deny a certificate of appealability and

dismiss this appeal.



                                         ENTERED FOR THE COURT


                                         Gregory A. Phillips
                                         Circuit Judge




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