* This order and judgment is not binding precedent, e xcept under the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

### DEC 8 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 98-3106

v. (97-CV-3488) GUILLERMO GONZALEZ a/k/a “Guillie”, (D. Kan.) Defendant - Appellant.

ORDER AND JUDGMENT *

Before ANDERSON , McKAY , and LUCERO , Circuit Judges.

After examining Defendant-Appellant’s brief and the appellate record, this panel has determined unanimously that oral argumentwould not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9. The case is therefore ordered submitted wi thout oral argument. Defendant, proceeding pro se and in forma pauperis , appeals the district court’s denial of his 28 U.S.C. § 2255 motion to va cate, set aside, or correct his1 Generally, we may not consider issues in a section 2255 motion that could

have been raised on direct appeal unless the defend ant can show cause and prejudice resulting from the error. See United States v. Cook , 45 F.3d 388, 392 (10th Cir. 1995); United States v. Warner , 23 F.3d 287, 291 (10th Cir. 1994). Because the government failed to raise this defense and the district court addressed the merits of Defendant’s motion, the iss ue has been waived. See United States v. Hall , 843 F.2d 408, 409-10 (10th Cir. 1988). Although we may raise the question of procedural bar sua sponte, se eHines v. United States , 971 F.2d 506, 509 (10th Cir. 1992), we elect not to do so here because Defendant’s claims fail to meet the standard for a certificate of appealability. -2- conviction and sentence. Following a jury trial, D efendant was convicted of conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a) and 846. On direct appeal, Defendant claimed three errors: (1) the court denied him severance and judgment of acquittal; (2) the court denied dis missal for double jeopardy; and (3) the court allowed an involuntary proffer into e vidence. We rejected each argument and affirmed Defendant’s conviction. See United States v. Gonzalez , 105 F.3d 670 (10th Cir. 1997) (Table). In his motion filed pursuant to 28 U.S.C. § 2255, D efendant claimed that (1) the evidence was insufficient to convict him; ( 2) he was actually innocent; (3) the criminal history level used at sentencing w as erroneous; and (4) the presentence report contained errors. Finding each claim to be without merit, the district court denied the motion. 1 The court subsequently denied Defendant a certificate of appealability. Defendant seeks to appeal the denial of his motion and requests a certificate of appealability from th is court. Because we construe-3-

Defendant’s Motion for Certificate of Appealability , which was filed within thirty days of the district court’s order denying his moti on, as a notice of appeal, we exercise jurisdiction. See Smith v. Barry , 502 U.S. 244, 248-49 (1992); see also Ray v. Cowley , 975 F.2d 1478, 1479 (10th Cir. 1992) (holding that an application for certificate of probable cause identifying the p arties to the appeal and the district court order appealed from was functional e quivalent of a notice of appeal); Knox v. Wyoming , 959 F.2d 866, 867 (10th Cir.1992) (same). To proceed on appeal under section 2255, Defendant must obtain a certificate of appealability. 28 U.S.C. § 2253(c)( 1). We will issue a certificate of appealability only if Defendant “has made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). In his brief, Defendant claims thathis due process rights were violated on two bases: (1) the re was no evidence to support his conviction for conspiracy; and (2) there are errors in the presentencing report which require an evidentiary hearing. A claim of i nsufficiency of evidence may be presented in a motion pursuant to 28 U.S.C. § 22 55. See, e.g. , United States v. McDonald , 150 F.3d 1301, 1305 (10th Cir. 1998); cf. Bradshaw v. Story , 86 F.3d 164, 166 (10th Cir. 1996) (confirming that section 2255 motion is proper remedy for attacking the legality of the judgment and sent ence). However, because we agree with the district court that the record does not support Defendant’s insufficiency of evidence claim, we conclude that h e has not made a substantial-4-

showing of the denial of a constitutional right. For two reasons, Defendant’s second claim also fail s to meet the standard for issuance of a certificate of appealability. Fi rst, in light of our review of the record, most of the alleged errors in the presenten ce report are not, in fact, errors but represent Defendant’s misreading or misunderstanding of the report. Second, the single error that Defendant correctly identifie s, the misnaming of one person, is inconsequential and has no bearing on Defendant’ s due process rights. We therefore deny Defendant a certificate of appealabi lity and dismiss his appeal. DENIED and DISMISSED. Entered for the Court

Monroe G. McKay Circuit Judge