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.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY 

________________ _________________ Before BRISCOE , LUCERO , and HARTZ , Circuit Judges.

________________ _________________ Jesus Sanchez seeks a certificate of appe alability (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 conspira cy 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 This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Court2 of violence” under 18 U.S.C. § 16, and it ther efore 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). Becaus e the district court dismissed his § 2255 motion on a procedural ground, without reaching the merits of his claim, Sanchez must show that jurists of re ason 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 open ing brief and application for a COA. See Hall v.
Scott , 292 F.3d 1264, 1 266 (10th Cir. 2002). We deny a COA because the district cour t’s procedural ruling—its dismissal of Sanchez’s § 2255 motion—is not debatable. But we reach this co nclusion on a different ground than the district court’s hold ing 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 gr anted under § 2255 “upon the gr ound that the sentence was imposed in violation of the Co nstitution or laws of the United States, or that the court was without jurisdiction to impose su ch sentence, or that the se ntence 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 se ek “to vacate, set aside or correct,” id. , his3 conviction under § 1962(d) or his sentence. What he seek s 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 pr oceeding dismissed with prejudice.” R., Vol. I at 363. Such relief is not cognizable unde r 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