* 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) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted w ithout oral argument. This Order and Judgment is not binding precedent, exceptunder the doctrines of law of the case, res judicata, and collateral estoppel. T he court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R . 36.3. 

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

### MAY 26 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. PEDRO MONTOYA-LONGORIA, Defendant-Appellant. No. 99-1512 (D.C. Nos. 99-M-1940 & 98-CR-248) (District of Colorado)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, EBEL and BRISCOE , Circuit Judges.
Defendant-Appellant Pedro Montoya-Longoria seeks a certificate of appealability to appeal the district court’s denial of his 28 U.S.C. § 2255 petition to vacate, set aside, or correct his sentence. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, deny a certificate of appealabili ty, and dismiss the appeal.- 2 -

Mr. Montoya-Longoria pled guilty to a violation of 8 U.S.C. § 1326(b)(2), reentry subsequent to deportation after a prior con viction for commission of an aggravated felony. His sentence of 57 months’ impr isonment was affirmed on appeal. See United States v. Montoya-Longoria , No. 98-1404, 1999 WL 317458 (10th Cir. May 20, 1999) (unpublished disposition). Mr. Montoya-Longoria filed a pro se 28 U.S.C. § 2255 habeas petition on Octobe r 5, 1999, arguing that his counsel was ineffective in failing to challenge the use of his prior state crime as a prior aggravated felony conviction for purposes of 8 U.S.C. § 1326(b)(2). Mr. Montoya-Longoria also alleged his counsel was ineff ective for failing to obtain a downward departure in the plea agreement. The dist rict court denied Mr. Montoya-Longoria’s § 2255 motion. On appeal, Mr. M ontoya-Longoria raises only the issue of his counsel’s ineffectiveness in failing to challenge the use of his prior state conviction. The basis of Mr. Monto ya-Longoria’s argument is that his prior state crime should not have been included as a prior conviction under 8 U.S.C. § 1326(b)(2). Mr. Montoya-Longoria did not raise the issue of the use of his prior state crime on direct appeal. Therefore, he is procedura lly barred from raising it in a § 2255 motion unless he establishes cause for the def ault and prejudice therefrom, or that manifest injustice will result if the claim is barred. See United States v. Frady , 456 U.S. 152, 164-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); United- 3 -

States v. Cook , 45 F.3d 388, 392 (10th Cir. 1995). In light of M r. MontoyaLongoria’s claim of ineffective assistance of couns el based on the omission of this issue from his direct appeal, we consider whether the issue has such merit that its omission would have constituted ineffectiv e assistance excusing the procedural default. See Cook , 45 F.3d at 392. We conclude that it does not. Mr. Montoya-Longoria’s 57-month sentence for violat ing 8 U.S.C. § 1326(b)(2) was predicated on his reentry subsequentto deportation after a prior conviction for an aggravated felony. He was senten ced pursuant to U.S.S.G. §2L1.2, which establishes a base offense level of 8 for unlawfully entering or remaining in the United States, and provides for a 16-level increase if the defendant previously was deported after a criminal conviction for an aggravated felony. Aggravated felony is defined to include a crime of violence. See 8 U.S.C. § 1101(a)(43)(F). Mr. Montoya-Longoria’s pr ior state conviction was for aggravated assault with a deadly weapon. See Plea Agreement, at 3 (Aug. 4, 1998). This prior conviction falls within the defi nition of a crime of violence.
See 18 U.S.C. § 16; U.S.S.G. §4B1.2. Under U.S.S.G. § 4B1.2, a crime of violence means “any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that . . . has as an element the use, attempted use, or threatened use of physical force against the person of another.” Mr. Montoya-Longoria’s prior state conviction was thus appropriately included as- 4 -

a prior conviction under 8 U.S.C. § 1326(b)(2). Mr . Montoya-Longoria therefore cannot demonstrate that his claim has sufficient me rit that its omission constituted ineffective assistance, excusing the procedural def ault. Mr. Montoya-Longoria’s application for a certificat e of appealability is DENIED, and the appeal is DISMISSED.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge