## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 22 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. DOMINIC JARAMILLO, Defendant - Appellant. No. 04-2200 (D.C. Nos. CR-02-2117 JP and CIV-04-323 JP/ACT) (D.N.M.)

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before KELLY , HENRY , and TYMKOVICH , Circuit Judges.
Defendant-Appellant Dominic Jaramillo, a federal pr isoner appearing pro se, seeks a certificate of appealability (“COA”) al lowing him to appeal the district court’s order denying his 28 U.S.C § 2255 motion. Because Mr. Jaramillo has failed to make a “substantial showing of the denial of a constitutional right” as required by 28 U.S.C. § 2253(c)(2), we deny his req uest for a COA and dismiss his appeal. Mr. Jaramillo pleaded guilty to aggravated sexual a buse of a child in Indian Country. The applicable criminal statute prohibits “in the special maritime and territorial jurisdiction of the United States . . . , knowingly engag[ing] in a sexual- 2 -

act with another person who has not attained the ag e of 12 years” and specifies a maximum sentence of life imprisonment. 18 U.S.C. § 2241(c). Pursuant to the Sentencing Guidelines, the presentence report calcu lated Mr. Jaramillo’s offense level including a 4-point enhancement under U.S.S.G . § 2A3.1(b)(1) for use of force or threat. At sentencing, the district courtagreed and imposed a 151-month term of imprisonment. As part of his plea agreemen t, Mr. Jaramillo waived appeal rights, and he did not appeal his sentence. In his § 2255 petition, Mr. Jaramillo argued that t here was insufficient evidence that he used threats to coerce his nine ye ar old victim. As a result, he maintained that the enhancement was erroneous. He also claimed that his counsel was ineffective for failing to contest the enhancem ent. Sua sponte, the district court rejected the applicability of Blakely v. Wash ington , __ U.S. __, 124 S. Ct. 2531 (2004), to this § 2255 motion. Ineffective assistance of counsel requires a showin g of deficient performance and prejudice. United States v. Harfst , 168 F.3d 398, 402 (10th Cir. 1999). Assuming, without deciding, that counsel improperly failed to investigate, explain, or make appropriate objections to the enha ncement, Mr. Jaramillo fails to satisfy the “prejudice” requirement by showing that“there is a reasonable probability that, but for counsel’s errors, he woul d not have [received the enhancement].” Hill v. Lockhart , 474 U.S. 52, 59 (1985); Romero v. Tansy , 46- 3 -

F.3d 1024, 1033 (10th Cir. 1995). The PSR and Mr. Jaramillo’s guilty plea and statements to investigators presented abundant evid ence of his use of force, undercutting his prejudice argument. Though Mr. Jaramillo refuted some of this evidence (and offered alternative explanations for his conduct) in his request for a certificate of appealability, the district court’s resolution of this issue is not reasonably debatable given the argument and evidenc e before it. Mr. Jaramillo contends that the enhancement is infi rm because he did not admit the facts relied upon for enhancement, nor we re they found by a jury. Of course, the Supreme Court recently held that the ru le announced in Blakelyis applicable to the Sentencing Guidelines. United St ates v. Booker , __ U.S. __, 125 S. Ct. 738 (2005). In deciding Booker , the Court unequivocally reiterated the proposition announced in Apprendi v. New Jersey , 530 U.S. 466, 490 (2000), stating that “[a]ny fact (other than a prior convic tion) which is necessary to support a sentence exceeding the maximum authorizedby the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Booker , 125 S. Ct. at 756. However, Blakely does not apply to a case like this one that is on c ollateral review. Schriro v. Summerlin , 124 S. Ct. 2519, 2522-26 (2004) (concluding that Ring v. Arizona , 536 U.S. 584 (2002) was procedural and did not appl y retroactively); United States v. Price , No. 04-7058, 2005 WL 535361, at *1 (10th Cir. Mar . 8, 2005).- 4 -

We DENY Mr. Jaramillo’s request for a COA and DISMI SS this appeal. Entered for the Court
Paul J. Kelly, Jr. Circuit Judge