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United States v. Victor Samuel Romo, Also Known as Valles Romo, Also Known as Victor S. Romo, Also Known as Victor Samuel Valles Romo, Also Known as Victor Samuel Romo-Valles, Also Known as Carlos A. Montano

Citations: 105 F.3d 670; 1997 U.S. App. LEXIS 4192; 1997 WL 2737Docket: 96-2112

Court: Court of Appeals for the Tenth Circuit; January 2, 1997; Federal Appellate Court

Narrative Opinion Summary

In this appellate case, the appellant sought a certificate of appealability following the denial of his 28 U.S.C. § 2255 motion by the federal district court. The Tenth Circuit Court of Appeals reviewed the matter, focusing on two primary issues: a sentencing enhancement due to the appellant's probation status during the offense and the constitutionality of 18 U.S.C. § 922(g), which criminalizes firearm possession by felons. The appellant did not timely object to the magistrate judge's recommendation for dismissal, and a third issue regarding sentencing credit was not reviewed as it was not raised in the district court. The Tenth Circuit upheld the lower court's findings, confirming that the appellant was aware of his probation status, justifying the enhancement. Additionally, the court dismissed the constitutional challenge to 18 U.S.C. § 922(g) based on existing precedent. Consequently, the court denied the certificate of appealability, dismissed the appeal, and clarified that its order and judgment do not constitute binding precedent, although they may be cited under specific conditions per Tenth Circuit Rule 36.3. The court's mandate was ordered to issue immediately.

Legal Issues Addressed

Certificate of Appealability under 28 U.S.C. § 2255

Application: The appellant's request for a certificate of appealability was denied because the issues raised did not justify further appellate review.

Reasoning: Victor Samuel Romo, the appellant, sought a certificate of appealability following the denial of relief under 28 U.S.C. § 2255 by the federal district court.

Constitutionality of 18 U.S.C. § 922(g)

Application: The court rejected the appellant's challenge to the constitutionality of the statute based on established precedent.

Reasoning: Additionally, the court noted prior rejection of the constitutionality argument against 18 U.S.C. § 922(g).

Procedural Default Due to Failure to File Objections

Application: The appellant's failure to file timely objections led to the magistrate judge's recommendation for dismissal standing unchallenged.

Reasoning: The magistrate judge recommended dismissal of Romo's petition, and he failed to file timely objections.

Sentencing Enhancement Based on Probation Status

Application: The court upheld the sentencing enhancement due to the appellant's knowledge of being on probation at the time of the offense.

Reasoning: Upon review, the Tenth Circuit agreed with the lower court's findings that Romo was aware of his probation status during the commission of the offense, justifying the sentencing enhancement.

Tenth Circuit Rule 36.3 on Non-Binding Precedents

Application: The court's decision is not binding precedent but may be cited under conditions specified by the rule.

Reasoning: The mandate was to issue immediately, and while the court disfavored citation of such orders and judgments, they could be cited under certain conditions established by Tenth Circuit Rule 36.3.