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                           United States Court of Appeals
                                    Tenth Circuit
                                     DEC 12 2001
                                   PATRICK FISHER
                                   TENTH CIRCUIT
         UNITED STATES OF AMERICA,        No. 01-4038
                                          (D.C. No. 98-CR-89-W)
              Plaintiff-Appellee,              (D. Utah)
         JOSE GOMEZ-GOMEZ,                
         Before SEYMOUR and McKAY, Circuit Judges, and BRORBY, Senior Circuit 
              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         judgment is not binding precedent, except under the doctrines of law of the case, 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.
         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, 


              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
         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. 
         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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