FILED
United States Court of Appeals
Tenth Circuit
DEC 12 2001
PATRICK FISHER
Clerk
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA, No. 01-4038
(D.C. No. 98-CR-89-W)
Plaintiff-Appellee, (D. Utah)
v.
JOSE GOMEZ-GOMEZ,
Defendant-Appellant.
ORDER AND JUDGMENT(1)
Before SEYMOUR and McKAY, Circuit Judges, and BRORBY, Senior Circuit
Judge.
Mr. Gomez-Gomez, a federal prisoner appearing pro se, appeals the district
court's denial of his petition for a writ of habeas corpus filed pursuant to 28
U.S.C. . 2255. He seeks a reduction of his sentence on the theory that the district
(1) After examining appellant's brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
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court misapplied United States Sentencing Guideline . 2L1.2 when it increased by
16 levels his sentence for unlawfully entering the United States when he was
previously deported after a criminal conviction for an aggravated felony. United
States Sentencing Guidelines, . 2L1.2 (1997). He also argues that the district
court erred when it denied him a two level decrease for acceptance of
responsibility under U.S.S.G. . 3E1.1 (1997).
In 1988, Mr. Gomez-Gomez pled guilty in state court to possession of a
controlled substance with intent to distribute. In 1989, he was convicted, again in
state court, of selling cocaine. The federal government deported Mr. Gomez-
Gomez in 1990 and he subsequently re-entered the United States. In 1998, Mr.
Gomez-Gomez was tried and convicted of illegal re-entry of a deported alien
under 8 U.S.C. . 1326(b) and sentenced to 78 months confinement under
Sentencing Guideline . 2L1.2. He appealed his sentence, contending the
convictions relied on to enhance his sentence were misdemeanors, not felonies.
This court affirmed, holding that his two convictions were, in fact, felonies.
United States v. Gomez-Gomez, No. 98-4156, 1999 WL 261235 (10th Cir. May 3,
1999).
Mr. Gomez-Gomez filed the present . 2255 motion seeking a reduction of
his sentence because, he claims, he was not deported for an aggravated felony.
The district court rejected this claim outright. Section 2L1.2(b)(1)(A) allows for
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a 16 level sentence increase if "the defendant previously was deported after a
criminal conviction" when the conviction was an aggravated felony. U.S.S.G. .
2L1.2(b)(1)(A) (1997) (emphasis added). Nothing in the language of the
guideline indicates that the deportation must be a result of the conviction, only
that the deportation take place after such conviction. The crimes for which
Mr. Gomez-Gomez was convicted in 1988 and 1989 constitute aggravated
felonies under 8 U.S.C. . 1101(a)(43).(1)
We must determine whether Mr. Gomez-Gomez is entitled to a certificate
of appealability. In so determining, we examine whether he has made a
substantial showing of the denial of a constitutional right. See 28 U.S.C. .
2253(c)(2). On appeal, Mr. Gomez-Gomez does not challenge the holdings of the
district court. Rather, he makes two new claims that were not raised and argued
below. Pro se litigants, like other litigants, are required to preserve issues for
appeal by raising them below. See Green v. Dorrell, 969 F.2d 915, 917 (10th Cir.
1992). Mr. Gomez-Gomez has not attempted to articulate a reason for us to
depart from the general rule that a federal appellate court does not consider an
issue not passed upon below. In re Walker, 959 F.2d 894, 896 (10th Cir.1992)
(quoting Singleton v. Wulff, 428 U.S. 106, 120 (1976)). See also United States v.
]
(1) In his motion to the district court, Mr. Gomez-Gomez also claimed he was
denied effective assistance of counsel. He provided no facts to support this claim
and the district court denied it.
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LaHue, 261 F.3d 993, 1010-11 (2001). We therefore need not reach the merits of
his claims on appeal.
We have reviewed Mr. Gomez-Gomez's briefs, the magistrate judge's
order, the district court's order and judgment, and the entire record on appeal.
Because Mr. Gomez-Gomez's claims were not raised below and he does not
challenge the decision of the district court, we conclude that he has raised no
arguments which require further proceedings, are debatable among jurists, or are
subject to a different resolution on appeal. See Barefoot v. Estelle, 463 U.S. 880,
893 n.4 (1983); see also Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Accordingly, he has not made a substantial showing of a denial of a constitutional
right. See 28 U.S.C. . 2253(c)(2).
We DENY Mr. Gomez-Gomez's request for a certificate of appealability
and DISMISS the appeal.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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