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

determined unanimously that oral argument would not be of material assistance in

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.

This order is not binding precedent, except under the doctrines of law of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

F I LED

United States Court of Appeals

Tenth Circuit

April 4, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RUBEN PARTIDA-CERVANTES,

Defendant-Appellant.

No. 06-3321

(D.C. No. 06-CV-3123-WEB and 

04-CR-10029-WEB)

(D. Kan.)

 

ORDER*

Before BRISCOE, McKAY, and McCONNELL, Circuit Judges.

Defendant pleaded guilty to possession with intent to distribute in excess of

five kilograms of cocaine in violation of 21 U.S.C. § 841(a) and (b)(1)(A) and

was sentenced to the statutory minimum of 120 months’ imprisonment. On direct

appeal, a panel of this court granted the government’s motion to enforce

Defendant’s plea agreement and dismissed the appeal. United States v. PartidaCervantes, No. 04-3363 (10th Cir. Jul. 12, 2005) (unpublished). 
Defendant then filed a § 2255 petition alleging involuntary and unknowing

waiver of appellate rights, ineffective assistance of counsel at sentencing, and

unconstitutional Booker error at sentencing. The district court rejected these

claims and denied Defendant’s request for a certificate of appealability (“COA”). 

The district court revisited these claims following Defendant’s motion for

reconsideration, and after further analysis spurred by Defendant’s new arguments,

rejected Defendant’s motion and confirmed its denial of a COA. 

Defendant advances to this court the same arguments he made below in

addition to a claim that the district court erred in not granting an evidentiary

hearing regarding Defendant’s alleged failure to comprehend “safety valve”

relief. However, our consideration of these claims is predicated on our issuance

of a COA. Defendant is entitled to a COA only if he makes a “substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To do

so, Defendant must demonstrate “that reasonable jurists could debate whether (or,

for that matter, agree that) the petition should have been resolved in a different

manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation

omitted). In other words, the applicant must show that the district court's

resolution of the constitutional claim was either “debatable or wrong.” Id.

Between the district court’s original decision denying Defendant’s § 2255

petition and its subsequent decision denying Defendant’s motion to reconsider,

we believe the district court more than adequately addressed Defendant’s
arguments and see no reason to repeat that effort here. The district court’s

well-reasoned opinions concluded that Defendant waived by plea agreement his

right to collaterally challenge his sentence, received effective assistance of

counsel, and comprehended his plea agreement with the aid of counsel and an

interpreter.

In addition, the district court analyzed, in the alternative, Defendant’s

claimed eligibility for “safety valve” relief and concluded that because his

underlying crime involved kidnapping by threats of violence, he could not satisfy

18 U.S.C. § 3553(f)(2). Given this result, as well as the district court’s correct

determination that Defendant received effective assistance of counsel regarding

this issue, we do not find that the district court abused its discretion by denying

Defendant an evidentiary hearing on this issue. See United States v. Harms, 371

F.3d 1208, 1210 (10th Cir. 2004); United States v. Cox, 83 F.3d 336, 341 (10th

Cir. 1996).

Consequently, after having carefully reviewed Defendant’s brief, the

district court’s dispositions, and the record on appeal, we conclude that no

reasonably debatable issues are presented by Defendant’s appeal. Accordingly,

we DENY Defendant’s request for a certificate of appealability and DISMISS the

appeal. We do, however, GRANT Defendant’s motion to proceed in forma

pauperis.

Entered for the Court

Monroe G. McKay

Circuit Judge