* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### October 25, 2005

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. JAVIER A. SALAZAR,

Defendant-Appellant. No. 05-2083 (D.C. Nos. CIV-04-67-JP.LCS and

CR-00-1395 JP) (D. New Mex.)

ORDER AND JUDGMENT *

Before EBEL , McKAY, and HENRY , Circuit Judges.

After examining Appellant’s brief and the appellate record, this panel has determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without ora l argument. This is an appeal under 28 U.S.C. § 2255. Appellan t was charged with one count of possession with intent to distribute less than five hundred grams of-2-

cocaine in violation of 21 U.S.C. § 841(a)(1) and ( b)(1)[C] and one count of possession of more than five hundred grams of cocai ne in violation of 21 U.S.C. § 841(a)(1) and (b)(1)[B]. The two counts stemmed fr om two separate interactions between Appellant and a confidential informant. Ap pellant admitted to all of the elements of each charge but advanced an entrapment defense. After the first day of trial, the jury reached an impasse in its delibe rations. The following morning, the district court, without objection by either par ty, gave the jury an Allen instruction, and the jury returned to deliberating. See Allen v. United States , 164 U.S. 492, 501 (1896). Shortly after receiving the Allen charge, the jury asked for a more precise definition of “inducement,” and the district court asked both parties to quickly find some examples of inducement in the case law. Before the research could be completed, however, the jury retu rned a verdict acquitting Appellant on the first count but convicting him on the second. Appellant was sentenced to forty-one months’ imprisonment to be f ollowed by three years of supervised release. Following his conviction, Appellant appealed to thi s court arguing both that the Allen charge was coercive and that the failure to answer the jury’s inquiry regarding inducement constituted plain and reversib le error. United States v. Salazar , 57 F. App’x 800, 802 (10th Cir. 2003). Because n either of these claims were raised before the district court, we reviewed the record for plain error. Id.-3-

In an unpublished opinion, we affirmed the districtcourt’s judgment. Id. at 803. On January 23, 2004, Appellant timely filed a motio n to vacate, set aside or correct his federal sentence pursuant to 28 U.S.C. § 2255. In his motion, Appellant alleged that he was denied effective assi stance of counsel and that the government’s fee arrangements with the confidential informant constituted prosecutorial misconduct that violated Appellant’s due process rights. After reviewing the record, the magistrate judge recommen ded that Appellant’s motion be denied. The district court adopted the magistra te judge’s report and recommendation and denied Appellant’s motion. Find ing no merit in Appellant’s argument, the district court also denied Appellant’ s request for certificate of appealability. Appellant now seeks from this court a certificate of appealability. The issues he raises on appeal are identical to tho se brought before the district
court. To grant a certificate of appealability, Appellant must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (1994). To meet this burden, Appellant must demonstrate “th at reasonable jurists could debate whether (or, for that matter, agree that) th e petition should have been resolved in a different manner or that the issues p resented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quotation omitted).-4-

We have carefully reviewed Appellant’s brief, the d istrict court’s disposition, the magistrate judge’s recommendation, and the record on appeal. Nothing in the facts, the record on appeal, or Appe llant’s filing raises an issue which meets our standard for the grant of a certifi cate of appealability. For substantially the same reasons set forth by the mag istrate judge and adopted by the district court in its Order of March 9, 2005, w e cannot say “that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner.” Id. We DENY Appellant’s request for a certificate of ap pealability and DISMISS the appeal. Entered for the Court

Monroe G. McKay Circuit Judge