UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. RAUL CORTES-PONCE, Defendant - Appellant. No. 17-3028 (D.C. Nos. 5:16-C V-04031-DDC and 5:13-CR-40078-DDC-1) (D. Kan.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before PHILLIPS , McKAY , and McHUGH , Circuit Judges.

________________ _________________ Raul Cortes-Ponce, a federal prisoner, seeks a certificate of appealability (COA) to challenge the denial of his 28 U.S.C. § 2255 habeas corpus Motion to Vacate, Set Aside, or Correct Sentence. 1 We must deny him one. 2 On June 23, 2014, in accordance with a written plea agreem ent, Cortes-Ponce pleaded guilty to one count of conspiring to possess with intent to distribute 500

* This order is not binding precedent, ex cept under the doctrines of law of the case, res judicata, and collatera l estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. A pp. P. 32.1 and 10th Cir. R. 32.1.

1 Cortes-Ponce has already been granted in forma pauperis status for this proceeding.

2 Cortes-Ponce is proceeding pro se, so we construe his pleadings liberally, but we do not serve as his advocate. Yang v. Archuleta , 525 F.3d 925, 927 n.1 (10th Cir. 2008). FILED United States Court of Appeals Tenth Circuit 

### September 6, 2017

Elisabeth A. Shumaker Clerk of Court2 grams or more of methamphe tamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A). The presentence investig ation report (PSR) found Cortes-Ponce responsible for 3.62 kilograms of metham phetamine and 200 k ilograms of cocaine. Those drug quantities corresponded with a base offense level of 36. After applying a two-level enhancement for importing co caine from Mexico under U.S.S.G. § 2D1.1(b)(4), a four-level enhancement for be ing an organizer or leader of criminal activity involving five or mo re participants under U.S.S. G. § 3B1.1(a), and a threelevel reduction for acceptance of respons ibility under U.S.S.G. § 3E1.1, the PSR assigned a total offense level of 39. Combined with his Cr iminal History category of II, that offense level yielde d an advisory guideline se ntencing range of 292 to 365 months of imprisonment. Cortes-Ponce initially obj ected to the PSR’s drug quantity calculations, but then withdrew his objecti on after the parties agreed to jointly recommend a substantially below-guideline-range sent ence of 192 months. The government filed a motion recommending that sentence, and the di strict court announced its intent to accept the recommendation. Later the distri ct court sentenced Cortes-Ponce to 192 months. We enforced Cortes-Ponce’s appeal waiver against his attempted direct appeal. In March 2016, Cortes-Ponce filed a § 225 5 petition in the District of Kansas. He alleged that his counsel had been ine ffective in allowing the inclusion of the cocaine into his sentencing, because the cocaine-r elated conduct was not part of the3 same course of conduct. The district c ourt denied the petition without holding a hearing and did not issue a COA. Cortes-Ponce appealed. To obtain a COA, a petitioner must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A di strict court must hold an evidentiary hearing for a fe deral prisoner who petitions for post-conviction relief

unless “the motion and the files and records of the case conclusi vely show that the prisoner is entitled to no relief.” United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc) (quoting 28 U.S.C. § 2255(b)). Here, the re levant substantive legal test is the high bar of Strickland v. Washington , 466 U.S. 668, 687 (1984). A petitioner must show both that his counsel’s performance was deficient and that the deficient performance prejudiced him. Id. We consider only the first of those two prongs and find that Cortes-Ponce cannot satisfy it. To satisfy Strickland , a counsel’s performance must be “outside the wide range of professionally competent assistance.” Id. at 690. The performance must be “not merely wrong,” but so unreasonable as to “bear no relationship to a possible defense strategy.” Fox v. Ward , 200 F.3d 1286, 1296 (10th Cir. 2000). “Strategic choices” that rest on thorough investigati on of the facts and the law “are virtually unchallengeable.” Strickland , 466 U.S. at 690. Cortes-Ponce’s counsel initially made an objection to the drug-quantity calculations, but withdrew it when he obtaine d assurances that his client would likely receive 192 months in prison, a sentence 1 00 months shorter than the bottom of the 292-to-365-month range that Cortes-Ponce wa s otherwise facing. Even if we assume4 for the sake of argument that the objecti on to the inclusion of the cocaine amount would have ultimately been successful if not withdrawn, making the objection would still have been a risky proposition. The gove rnment had another card to play: it could have filed a 21 U.S.C. § 851 motion, whic h would have landed Cortes-Ponce with a 240-month mandatory-minimum sentence. Because of th e plea agreement, the government did not do so. In view of a ll possible sentence enhancements and all possible reductions, Cortes-Ponce’s counsel made a strategic c hoice to plead guilty and ensure a below-guideline (and below-po tential-mandatory-min imum) sentence, a choice that was objectively re asonable and not deficient. 3 Cortes-Ponce has not made the required substantial showing for a COA. And

because the record conclusive ly shows that Cortes-Ponce is not entitled to relief, the

district court was correct in finding that an evidentiary hearing was not necessary. CONCLUSION We deny Cortes-Ponce a COA and a h earing and dismiss this appeal.

Entered for the Court

Gregory A. Phillips Circuit Judge

3 In his brief, Cortes-Ponce makes a num ber of new arguments and allegations that he did not raise in his in itial petition at the dist rict court. Failure to raise issues in the district court “gener ally constitutes waiver,” Rios v. Ziglar , 398 F.3d 1201, 1209 (10th Cir. 2005), and so we will not address them here fo r the first time on appeal.