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

### December 15, 2005

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ROCENDO ROMERO-BORRAYO, Defendant-Appellant. No. 05-4105 (District of Utah) (D.C. Nos. 2:02-CV-76-DB and 2:01-CR-56-DB)

ORDER

Before BRISCOE , LUCERO and MURPHY , Circuit Judges.
Petitioner, Rocendo Romero Borrayo, seeks a certifi cate of appealability (“COA”) so he can appeal the district court’s denia l of the motion to vacate, set aside, or correct sentence he brought pursuant to 2 8 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(B) (providing that a movant may not ap peal the denial of a § 2255 motion unless the movant first obtains a COA). Bec ause Borrayo has not made a substantial showing of the denial of a constitution al right, we deny his request and dismiss this appeal. In 1999, Borrayo was convicted in Utah state court of forgery. He received an indeterminate sentence of zero to five years butwas deported to Mexico after-2-

serving only nine months in jail. In 2001, Borrayo pleaded guilty to illegally reentering the United States in violation of 8 U.S. C. § 1326(a). The district court concluded that Borrayo’s 1999 state conviction was an aggravated felony and enhanced his sentence pursuant to 8 U.S.C. § 1326(b ). Borrayo was sentenced to a term of seventy-seven months’ imprisonment and th ree years’ supervised release. Borrayo did not bring a direct appeal butfiled the instant § 2255 motion on January 29, 2002 seeking to set aside his § 1326 (a) conviction. In his § 2255 motion, Borrayo argues that his § 132 6(a) conviction for illegal reentry is improper because his initial dep ortation was unlawful. Specifically, Borrayo asserts that he was denied an effective opportunity to appeal the removal order because his waiver of his appellate rights was not knowing and voluntary. He contends that he was not informed of the availability of discretionary relief from deportation when he signe d the waiver. Borrayo also argues that his 1999 state conviction is not an agg ravated felony within the meaning of 8 U.S.C. § 1101(3)(43) and that his atto rney provided constitutionally ineffective assistance by failing to challenge the characterization of his state conviction as an aggravated felony. Borrayo also a rgues that his sentence violates United States v. Booker , 125 S. Ct. 738 (2005). The district court rejected Borrayo’s argument thathis state conviction is not an aggravated felony. Relying on 8 U.S.C. § 11 01(a)(43)(R), the court-3-

concluded the term “aggravated felony” includes Bor rayo’s 1999 state conviction because it was “an offense relating to commercial . . . forgery . . . for which the term of imprisonment is at least one year.” The co urt determined that the length of Borrayo’s indeterminate state sentence was measu red by the maximum possible term of imprisonment. See United States v. Reyes-Castro , 13 F.3d 377, 379-80 (1995). The district court’s rejection of Borrayo’ s state conviction claim also resolved the ineffective assistance claim. The cou rt then concluded Borrayo failed to demonstrate that the waiver of his right to appeal his removal was not knowing and voluntary. In the alternative, the cou rt determined that Borrayo was not eligible for discretionary relief and, thus, he could not demonstrate he was prejudiced by his failure to appeal. See 8 U.S.C. § 1228(b)(5) (“No alien described in this section shall be eligible for any relief from removal that the Attorney General may grant in the Attorney General’ s discretion.”). Finally, the court rejected Borrayo’s Bookerargument on the merits. In his application for COA and appellate brief, Borrayo abandons his ineff ective assistance and Booker arguments. He does, however, challenge the distric t court’s conclusions that his state conviction is an aggravated felony and that h e was not prejudiced by his failure to appeal his removal order. To be entitled to a COA, Borrayo must make “a subst antial showing of the denial of a constitutional right.” 28 U.S.C. § 225 3(c)(2). To make the requisite-4-

showing, he must demonstrate “that reasonable juris ts 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 t o deserve encouragement to proceed further.” Miller-El v. Cockrell , 322 U.S. 322, 336 (2003) (quotations omitted). In evaluating whether Borrayo has satisf ied his burden, this court undertakes “a preliminary, though not definitive, c onsideration of the [legal] framework” applicable to each of his claims. Id. at 338. Although Borrayo need not demonstrate his appeal will succeed to be entit led to a COA, he must “prove something more than the absence of frivolity or the existence of mere good faith.” Id. Having undertaken a review of Borrayo’s applicationfor a COA and appellate filings, the district court’s order, and the entire record on appeal pursuant to the framework set out by the Supreme Co urt in Miller-El , this court concludes that Borrayo is not entitled to a COA. T he district court’s resolution of Borrayo’s § 2255 motion is not reasonably subject t o debate and the issues he seeks to raise on appeal are not adequate to deserv e further proceedings. Accordingly, this court denies Borrayo’s request for a COA and dismisses this appeal. Entered for the Court CLERK, COURT OF APPEALS-5- By Deputy Clerk