* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he 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). Th is showing can be made if defendant demonstrates that the issues are debatabl e among jurists, that a court could resolve the issues differently, or that the q uestions 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 cons piracy to distribute in excess of 100 kilograms of marijuana in violation o f 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, asse rting claims based on his status as a deportable alien. Because he is no t 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 c onfinement in a minimum security prison, cannot participate in the Bureau o f Prisons’ drug rehabilitation program, and is ineligible for early release. Def endant claims these restrictions cause his conditions of confinement to be harsher b ecause of his status as an alien. He contends, therefore, that his attorney w as ineffective for failing to seek a downward departure under USSG § 5K2.0, which perm its a sentencing court to1 Mr. Acevedo also contends in his application for CO A that his conviction

should be reversed because the government failed to advise him of his rights under the Vienna Convention to inform Mexican consu lar officials of his arrest and detention. We do not consider this issue, howe ver, 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 dif ferential treatment he receives as a deportable alien in the federal priso n 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 b y 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 enti tled 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 rationallyrelated to legitimate safety

concerns. 2Where, as here, the district court rejects the co nstitutional claims on the merits, defendant “must demonstrate that reason able 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 assessme nt of Mr. Acevedo’s claims neither debatable nor wrong, we deny his applicatio n for COA and DISMISS the appeal. Entered for the Court

Bobby R. Baldock Circuit Judge