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                           UNITED STATES COURT OF APPEALS
                                   TENTH CIRCUIT
                             United States Court of Appeals
                                      Tenth Circuit
                                         AUG 24 2001
                                      PATRICK FISHER
                                           Clerk           No. 01-1127
         UNITED STATES OF AMERICA,        


         MANUEL EDMUNDO SANCHEZ-DOMINGUEZ, also known as Manuel Edmund Dominguez,      
		 (D.C. No. 00-S-1554)
         Before HENRY, BRISCOE and MURPHY, Circuit Judges.         
              After examining the briefs and 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); 10th Cir. R. 34.1(G).  The case is therefore 

         ordered submitted without oral argument.

              Manuel Edmundo Sanchez-Dominguez, a federal prisoner proceeding pro se,

         (1)     This order and judgment is not binding precedent, except under the doctrines of 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.
         requests a certificate of appealability to appeal the denial of his 28 U.S.C. . 2255 

         habeas petition.  We deny a certificate of appealability and dismiss the appeal.

              In 1994, Sanchez-Dominguez was deported from the United States to Mexico 

         following a drug conviction.  In 1998, he was convicted of illegal reentry after 

         deportation, in violation of 8 U.S.C. . 1326(a) and (b)(2), and was sentenced to eighty-

         four months' imprisonment.  Sanchez-Dominguez did not file a timely notice of appeal, 

         but on July 15, 1999, he wrote to the district court inquiring whether his attorney had 

         filed a notice of appeal.  On September 27, 1999, his attorney filed a motion to allow 

         the filing of an untimely notice of appeal, which was denied.  

              Sanchez-Dominguez filed his 28 U.S.C. . 2255 petition on August 7, 2000, 

         asserting (1) ineffective assistance of counsel for failure to object to the indictment on 

         double jeopardy grounds, failure to move for a jury trial, failure to challenge his prior 

         state conviction, failure to challenge his prior deportation order, failure to investigate 

         and assert extraordinary circumstances as a basis for downward departure, and failure 

         to appeal the denial of the request for downward departure; (2) his conviction and 

         sentence violated the ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000); and (3) 

         his conviction and sentence did not comply with the provisions of 21 U.S.C. . 850 for 

         charging prior convictions for defendants charged with having prior drug convictions. 

         The district court found Sanchez-Dominguez failed to satisfy either prong of the test to 

         review ineffective assistance of counsel claims set forth in Strickland v. Washington,
         466 U.S. 668 (1984).  The court further determined his claim under Apprendi lacked 

         merit because his sentence was enhanced on the basis of a prior conviction.  See 530 

         U.S. at 487-88.  The court determined that Sanchez-Dominguez apparently intended to 

         cite 21 U.S.C. . 851 in his final allegation, but that . 851 applied "only to charging 

         and proving prior drug offenses for statutory penalty enhancement purposes in 

         connection with new drug offenses."  Order at 8.  The court denied the petition and 

         subsequently denied a certificate of appealability.

              In his opening brief, Sanchez-Dominguez contends his "[c]ounsel's performance 

         was deficient for failing to raise [the] issue of 'cultural assimilation'" as a ground for 

         downward departure on appeal, and "[a]ppellant was prejudiced thereby because [the] 

         issue was not appealed."  Br. at 16.

              To establish substantial denial of a constitutional right based on ineffective 

         assistance of counsel, a defendant must show

              [f]irst, . . . [that] counsel committed serious errors so as to not be 
              functioning as the "counsel" provided by the Sixth Amendment.  To 
              determine whether counsel's performance comported with the Sixth 
              Amendment, the inquiry is whether the attorney's conduct is reasonable in 
              light of all the circumstances of the case.  This is an objective standard 
              based on whether the reasonable defense attorney would act in the same 
              manner as the defense counsel in the situation being analyzed.  Second, it 
              must be shown that counsel's performance was prejudicial to the defense. 
              The defendant must show that there is a reasonable probability that, but 
              for counsel's unprofessional errors, the result of the proceeding would 
              have been different.
         United States v. Voigt, 877 F.2d 1465, 1467-68 (10th Cir. 1989) (citing Strickland,
         466 U.S. at 687-88, 694) (internal quotations omitted).  While Sanchez-Dominguez 

         asserted several ineffective assistance arguments in the district court, his only assertion 

         on appeal is counsel's failure to appeal the court's denial of a downward departure 

         based on cultural assimilation. Therefore, the other ineffective assistance arguments are 

         deemed waived.

              "Our review of a sentencing court's refusal to grant a downward departure is 

         narrow."  United States v. Browning, 252 F.3d 1153, 1160 (10th Cir. 2001).

              [C]ourts of appeals cannot exercise jurisdiction to review a sentencing 
              court's refusal to depart from the sentencing guidelines except in the very 
              rare circumstance that the district court states that it does not have any 
              authority to depart from the sentencing guideline range for the entire class 
              of circumstances proffered by the defendant. . . .  This exception does not 
              apply when a sentencing court concludes under the defendant's particular 
              circumstances that it does not have the authority to depart.
         Id. at 1160-61 (citing United States v. Castillo, 140 F.3d 874, 887 (10th Cir. 1998)). 

         Here, the district court recognized that it had the authority to grant a downward 

         departure based on cultural assimilation but elected not to do so.  The court's decision 

         not to grant the motion for downward departure was therefore not appealable.  See id. 

         Counsel's failure to engage in a frivolous appeal cannot be considered ineffective 

         assistance of counsel.

              Sanchez-Dominguez has not "made a substantial showing of the denial of a 

         constitutional right," 28 U.S.C. . 2253(c)(2).  We DENY a certificate of appealability 

         and DISMISS the appeal.  The motion to proceed in forma pauperis on appeal is
         DENIED.  The mandate shall issue forthwith.

                                            Entered for the Court

                                            Mary Beck Briscoe
                                            Circuit Judge

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