United States v. Gonzalez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-40092

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

VICTOR HUGO GONZALEZ,

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:16-CV-324
USDC No. 5:15-CR-852-1

Before DENNIS, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM:
*

Victor Hugo Gonzalez, federal prisoner # 66219-279, pleaded guilty to
possession with intent to distribute methamphetamine in violation of 21 U.S.C.
§ 841(a) and § 841(b)(1)(A) and was sentenced to 188 months of imprisonment
and five years of supervised release. He moves for a certificate of appealability
(COA) to appeal the denial of his 28 U.S.C. § 2255 motion. Gonzalez argues

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
May 4, 2020

Lyle W. Cayce
Clerk
Case: 19-40092 Document: 00515403285 Page: 1 Date Filed: 05/04/2020

No. 19-40092
2
that his attorney was ineffective for failing to object to the drug quantity used
to calculate his sentence.
To obtain a COA, a movant must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where a district court
has denied claims on the merits, a movant must show “that jurists of reason
could disagree with the district court’s resolution of his constitutional claims
or that jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003). Gonzalez has not met this standard with respect to his ineffective
assistance claim and has therefore not shown an entitlement to a COA.
We construe his motion for a COA with respect to the district court’s
denial of an evidentiary hearing as a direct appeal of that issue. See Norman
v. Stephens, 817 F.3d 226, 234 (5th Cir. 2016). Gonzalez did not file a motion
or make a request for an evidentiary hearing in his § 2255 proceedings in the
district court, nor did he complain of the lack of a hearing. Because Gonzalez’s
argument concerning the lack of an evidentiary hearing in his § 2255
proceeding is raised for the first time on appeal, we will not consider it. United
States v. Scruggs, 691 F.3d 660, 666 (5th Cir. 2012). Gonzalez’s motion for
leave to proceed in forma pauperis (IFP) on appeal is denied.
COA DENIED; AFFIRMED; IFP DENIED.
Case: 19-40092 Document: 00515403285 Page: 2 Date Filed: 05/04/2020