UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

JESUS SANCHEZ, 

 Defendant - Appellant. 

No. 19-3203 

(D.C. Nos. 6:19-CV-01087-JTM & 

6:12-CR-10089-JTM-12) 

(D. Kan.) 

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ORDER DENYING CERTIFICATE OF APPEALABILITY

_________________________________ 

Before BRISCOE, LUCERO, and HARTZ, Circuit Judges. 

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Jesus Sanchez seeks a certificate of appealability (COA) to appeal the district 

court’s denial of his motion under 28 U.S.C. § 2255. We deny a COA and dismiss the 

matter. 

Sanchez pleaded guilty in 2014 to one count of conspiracy to commit racketeering 

activities, in violation of 18 U.S.C. § 1962(d), and waived his right to appeal. He filed a 

pro se § 2255 motion in 2019. The motion does not challenge his conviction or his 

sentence on the racketeering charge. Rather, citing Sessions v. Dimaya, 138 S. Ct. 1204 

(2018), Sanchez argues that his conviction under § 1962(d) does not qualify as a “crime 

 

 This order is not binding precedent except under the doctrines of law of the case, 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 21, 2020

Christopher M. Wolpert 

Clerk of Court
2 

of violence” under 18 U.S.C. § 16, and it therefore cannot be treated as an “aggravated 

felony” under 8 U.S.C. § 1101(a)(43)(F) in deportation proceedings. The district court 

dismissed Sanchez’s § 2255 motion as untimely and denied a COA. 

Sanchez must obtain a COA to pursue an appeal. See United States v. Springer, 

875 F.3d 968, 972 (10th Cir. 2017); 28 U.S.C. § 2253(c)(1)(B). Because the district court 

dismissed his § 2255 motion on a procedural ground, without reaching the merits of his 

claim, Sanchez must show that jurists of reason would find it debatable whether (1) the 

district court’s procedural ruling was correct, and (2) his motion stated a valid claim of 

the denial of a constitutional right. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). 

We liberally construe his pro se opening brief and application for a COA. See Hall v. 

Scott, 292 F.3d 1264, 1266 (10th Cir. 2002). 

We deny a COA because the district court’s procedural ruling—its dismissal of 

Sanchez’s § 2255 motion—is not debatable. But we reach this conclusion on a different 

ground than the district court’s holding that the motion was untimely. See Davis v. 

Roberts, 425 F.3d 830, 834 (10th Cir. 2005) (denying a COA on an alternative ground 

not relied on by the district court). 

Reasonable jurists would not debate that Sanchez’s motion was properly 

dismissed. Relief can be granted under § 2255 “upon the ground that the sentence was 

imposed in violation of the Constitution or laws of the United States, or that the court was 

without jurisdiction to impose such sentence, or that the sentence was in excess of the 

maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. 

§ 2255(a). But Sanchez’s motion does not seek “to vacate, set aside or correct,” id., his 
3 

conviction under § 1962(d) or his sentence. What he seeks is to prevent the use of his 

racketeering conviction as a basis for his removal as an aggravated felon. He claims that 

he is “entitled to have any deportation proceeding dismissed with prejudice.” R., Vol. I 

at 363. Such relief is not cognizable under a § 2255 motion in his criminal case. 

Accordingly, the dismissal of Sanchez’s § 2255 motion was undoubtedly correct, 

so we deny a COA. See Davis, 425 F.3d at 835-36 (denying a COA where the claim was 

not cognizable under 28 U.S.C. § 2254). We grant Sanchez’s motion to proceed on 

appeal without prepayment of fees and costs. 

Entered for the Court 

Harris L Hartz 

Circuit Judge