* This order and judgment is not binding precedent, except under the doctrines of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 25 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee, Nos. 97-2248 97-2312 97-2338 v. (D.C. No. CIV-96-651) EDGAR BUEZO, (D. N.M.) Defendant - Appellant.

ORDER AND JUDGMENT *
Before ANDERSON , McKAY , and LUCERO , Circuit Judges.
After examining the briefs and the appellate record , this panel has determined unanimously that oral argument would notmaterially assist the determination of these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cases are therefore ordered submitted without o ral argument.-2-

Defendant, Mr. Edgar Buezo, was convicted of conspi racy to distribute cocaine, in violation of 21 U.S.C. § 846; possessio n of cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 18 U.S.C. § 2; and the carrying or use of a firearm in the commiss ion of a drug offense, in violation of 18 U.S.C. § 924(c)(1). See R., Vol. I, Doc. 4 at 2. Defendant’s convictions were affirmed on direct appeal. See United States v. Martinez , 979 F.2d 1424 (10th Cir. 1992), cert. denied , 507 U.S. 1022, and cert. denied sub
nom. Rodriguez v. United States , 509 U.S. 913 (1993). Defendant subsequently filed a 28 U.S.C. § 2255 motion, contending that hi s conviction and sentence are invalid in light of Bailey v. United States , 516 U.S. 137 (1995), decided after Defendant’s conviction was affirmed. See R., Vol. I, Doc. 1 at 4; Doc. 16 at 4-6. The district court appointed counsel to represent D efendant during his section 2255 action. See id. , Docs. 7-9. Defendant’s section 2255 motion was d enied,
see id. , Docs. 17, 18, and the district court denied Defen dant a certificate of appealability. Defendant appeals the district court’s denial of r elief under section 2255. Defendant also appeals an order of the district cou rt denying his motion to reconsider the section 2255 motion. Additionally, Defendant appeals an order of1 The Tenth Circuit Court of Appeals Clerk’s Office consolidated appeal numbers

97-2248 and 97-2312 on October 24, 1997. -3- the district court allowing his court-appointed cou nsel to withdraw from his case after his section 2255 motion was denied. 1 In reviewing the denial of a § 2255 motion, we revi ew the district court’s legal determinations de novo and its findings of fact for clear error. See United States v. Cox , 83 F.3d 336, 338 (10th Cir. 1996). Defendant con tends that his conviction under the “use” prong of section 924(c)( 1) must be vacated, arguing that his conviction is invalid given the Supreme Co urt’s subsequent interpretation of that term in Bailey . See R., Vol. I, Doc. 1 at 4; Doc. 16 at 4-6. The gran t of a certificate of appealability requires “a substantia l showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A certificate of appealability should be granted only if the issues raised are deb atable among jurists of reason, if a court could resolve the issues differently, orif the questions presented are deserving of further proceedings. Cf. Lennox v. Evans , 87 F.3d 431, 434 (10th Cir. 1996) (holding that the standard for granting a certificate of appealability is the same standard established by the Supreme Court in Barefoot v. Estelle , 463 U.S. 880, 893 n.4 (1983), for granting a certificat e of probable cause), cert. denied , ___ U.S. ___, 117 S. Ct. 746, overruled in partonothergrounds byLindh v. Murphy , ___ U.S. ___, 117 S. Ct. 2059 (1997).2Additionally, because the district court determined that Defendant’s section 2255

motion was unsupportable, the district court did not abuse its discretion when it allowed counsel to withdraw. -4- We conclude that Defendant has failed to make a “su bstantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), for the same reasons set forth in the district court’s Memorandum Opinio n and Order of May 30, 1997. Accordingly, we DENY Petitioner’s application for acertificate of appealability and DISMISS the appeal. 2
Entered for the Court Monroe G. McKay Circuit Judge