* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The 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

MAR 22 2001

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FERNANDO ACEVEDO,

Defendant-Appellant.

No. 00-3177

(D.C. No. 00-CV-3143-DES)

(D. Kan.)

ORDER AND JUDGMENT *

Before SEYMOUR, BALDOCK, and LUCERO , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially 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 oral argument.

Defendant Fernando Acevedo, appearing pro se, seeks a certificate of

appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2255
-2-

motion to vacate, set aside or correct his criminal sentence. In order for this court

to grant a COA, defendant must make a “substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). This showing can be made if

defendant demonstrates that the issues are debatable among jurists, that a court

could resolve the issues differently, or that the questions presented deserve

further proceedings. Slack v. McDaniel , 529 U.S. 473, 483-84 (2000). Because

Mr. Acevedo fails to make the requisite showing, we dismiss this appeal.

Mr. Acevedo pled guilty on August 24, 1999, to conspiracy to distribute in

excess of 100 kilograms of marijuana in violation of 21 U.S.C. § 846. He was

sentenced to thirty-seven months’ imprisonment in the Federal Bureau of Prisons

and did not file a direct appeal. 

On April 23, 2000, he filed his § 2255 motion, asserting claims based on

his status as a deportable alien. Because he is not a United States citizen, Mr.

Acevedo is subject to deportation upon his release from prison. As a result of his

deportation status, Mr. Acevedo is ineligible for confinement in a minimum

security prison, cannot participate in the Bureau of Prisons’ drug rehabilitation

program, and is ineligible for early release. Defendant claims these restrictions

cause his conditions of confinement to be harsher because of his status as an

alien. He contends, therefore, that his attorney was ineffective for failing to seek

a downward departure under USSG § 5K2.0, which permits a sentencing court to
1 Mr. Acevedo also contends in his application for COA that his conviction

should be reversed because the government failed to advise him of his rights

under the Vienna Convention to inform Mexican consular officials of his arrest

and detention. We do not consider this issue, however, because he failed to raise

it in his § 2255 motion to the district court. See United States v. Cook , 997 F.2d

1312, 1316 (10th Cir. 1993).

2 Mr. Acevedo’s equal protection challenge to the differential treatment he

receives as a deportable alien in the federal prison system is not properly brought

under § 2255, but should have been filed under 28 U.S.C. § 2241, because it

concerns the execution, rather than the imposition, of his sentence. See McIntosh

v. United States Parole Comm’n , 115 F.3d 809, 811 (10th Cir. 1997) (“Petitions

under § 2241 are used to attack the execution of a sentence, in contrast to . . .

§ 2255 proceedings, which are used to collaterally attack the validity of a

conviction and sentence.” (citations omitted)).

-3-

depart from the applicable guideline range if there exist mitigating circumstances

of a kind not adequately taken into consideration by the guidelines. He also

claims the disparate treatment of deportable aliens violates his equal protection

rights. 1 

The district court held that defendant was not entitled to habeas relief on

his claim of ineffective assistance of counsel because he had not shown that his

defense was prejudiced by any deficiency in his trial attorney’s performance. See

Strickland v. Washington , 466 U.S. 668, 687, 694 (1984). It also rejected

defendant’s equal protection claim on the basis that the Bureau of Prisons’

policies concerning deportable aliens is rationally related to legitimate safety

concerns. 2

 Where, as here, the district court rejects the constitutional claims on

the merits, defendant “must demonstrate that reasonable jurists would find [its]
-4-

assessment of the constitutional claims debatable or wrong.” Slack , 529 U.S. at

484. Because we find the district court’s assessment of Mr. Acevedo’s claims

neither debatable nor wrong, we deny his application for COA and DISMISS the

appeal. 

Entered for the Court

Bobby R. Baldock

Circuit Judge