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                           United States Court of Appeals
                                    Tenth Circuit
                                     AUG 9 2001
                                   PATRICK FISHER
                                          No. 01-4044
         UNITED STATES OF AMERICA,        (D.C. No. 00-CV-647-J)
                                          (District of Utah)
               Plaintiff - Appellee,            
         Defendant - Appellant.           
         Before EBEL, KELLY, and LUCERO, Circuit Judges.
              Petitioner Juan Alfonso Valdez-Gomez appears before this Court pro se 

         seeking a certificate of appealability ("COA"), 28 U.S.C. . 2253(c), to challenge 

         the district court's dismissal of his petition for a writ of habeas corpus.  

              On January 12, 2000, petitioner pleaded guilty to a violation of 8 U.S.C. 

         . 1326, illegal reentry of a deported alien, and was sentenced to forty-six months

         (1)       The case is unanimously ordered submitted without oral argument 
         pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G).  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         judgment is not binding precedent, except under the doctrines of law of the case, 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.
         imprisonment to be followed by a term of three years supervised release.  In his 

         plea, petitioner waived his right to appeal but reserved his right to collaterally 

         attack his sentence for ineffective assistance of counsel.  Pursuant to his 

         reservation of the right to collaterally attack his sentence, petitioner filed his 28 

         U.S.C. . 2255 motion with the district court for the district of Utah.  Before this 

         Court, petitioner argues that his counsel was ineffective because he did not argue 

         for sentencing reductions based on his status as a deportable alien or on his 

         willingness to accept deportation.

              In order to establish his claim of ineffective assistance of counsel in 

         violation of the Sixth Amendment, petitioner must demonstrate both that his 

         counsel's performance fell below an objective standard of reasonableness and that 

         his counsel's substandard performance prejudiced his defense.  Strickland v. 

         Washington, 466 U.S. 668, 687, 688 (1984).  The prejudice prong of the 

         Strickland test requires petitioner to demonstrate "a reasonable probability that, 

         but for his counsel's unprofessional errors, the result of the proceeding would 

         have been different."  Id. at 694.  This, in turn, requires the court to focus on 

         "whether counsel's deficient performance render[ed] the result of the trial 

         unreliable or the proceeding fundamentally unfair."  Lockhart v. Fretwell, 506 

         U.S. 364, 372 (1993).

              We concur fully in the district court's reasoning and conclusion that 

         petitioner was not prejudiced by his counsel's failure to argue for certain 

         downward sentencing departures.(1)  Assuming it was within the sentencing court's 

         discretion to depart downward from the sentencing guidelines based on 

         petitioner's status as an illegal alien, we can not conclude there was "a reasonable 

         probability that . . . the result of the proceeding would have been different," 

         Strickland, 466 U.S. at 694, if petitioner's counsel had argued for a downward 

         departure based on an essential element of the crime charged, i.e., petitioner's 

         status as a deportable alien, 8 U.S.C. . 1326(a).  Similarly, petitioner's argument 

         regarding counsel's failure to inform the trial court of his willingness to be 

         deported falls short of calling into question the fairness or reliability of the 

         district court's sentencing determination because the pre-sentence report 

         expressly stated petitioner "w[ould] not contest any . . . deportation proceedings." 

         (II R. at 1.)

              We conclude petitioner has not "made a substantial showing of the denial 

         of a constitutional right."  28 U.S.C. . 2253(c)(2).  The application for COA is 

         DENIED, and the matter is DISMISSED.

         (1)       We therefore need not reach the ineffectiveness prong of Strickland.  See 
         Strickland, 466 U.S. at 697 ("If it is easier to dispose of an ineffectiveness claim 
         on the ground of lack of sufficient prejudice .. . that course should be 
              The mandate shall issue forthwith.
                                       ENTERED FOR THE COURT
                                       Carlos F. Lucero
                                       Circuit Judge

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