United States v. Sanchez-Llamas , 62 F. App'x 259 ( 2003 )


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  •                                                                         F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    APR 2 2003
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.                                            No. 01-1128
    (D. Ct. No. 00-CR-436-N)
    JOSE LUIS SANCHEZ-LLAMAS,                               (D. Colo.)
    Defendant - Appellant.
    ORDER AND JUDGMENT *
    Before TACHA, Chief Circuit Judge, HOLLOWAY, and McKAY Circuit
    Judges.
    After examining the briefs and the appellate record, this three-judge panel
    has determined unanimously that oral argument would not be of material
    assistance in 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.
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. This 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.
    I. Background
    Defendant Jose Luis Sanchez-Llamas appeals the district court’s
    determination that he was a minor, rather than a minimal, participant in the drug
    transaction for which he was convicted and its corresponding reduction of his
    sentence by two, rather than four, levels. We exercise jurisdiction pursuant to 
    28 U.S.C. § 1291
     and 
    18 U.S.C. § 3742
     and AFFIRM. We dismiss without prejudice
    defendant’s ineffective assistance of counsel claim.
    II. Discussion
    A.    Waiver of Appellate Review of the Factual Determination Regarding
    Defendant’s Role in the Offense
    The district court’s determination as to whether Mr. Sanchez-Llamas was a
    minor or a minimal participant in the drug sale at issue is a factual one,
    reviewable for clear error. United States v. Garcia, 
    182 F.3d 1165
    , 1175 (10th
    Cir. 1999). Even clear error review is inappropriate, however, when defendant
    fails to preserve the issue on appeal. United States v. Richardson, 
    86 F.3d 1537
    ,
    1554 (10th Cir. 1996) (“‘Failure to object to a fact in a presentence report, or
    failure to object at the [sentencing] hearing, acts as an admission of fact.’”)
    (quoting United States v. Deninno, 
    29 F.3d 572
    , 580 (10th Cir. 1994)). A narrow
    exception to the general waiver rule permits appellate review where the district
    court’s reliance on the Presentence Report (“PSR”) is itself plain error. See
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    United States v. Ivy, 
    83 F.3d 1266
    , 1297 (10th Cir. 1996). To constitute plain
    error, a district court’s decision must be “‘particularly egregious,’ as well as
    ‘obvious and substantial.’” United States v. Saucedo, 
    950 F.2d 1508
    , 1511 (10th
    Cir. 1991) (citations and quotations omitted).
    The PSR relied upon by the district court indicated that, given his degree of
    participation in the transaction, Mr. Sanchez-Llamas was a minor participant
    eligible for a two-level reduction in sentence, rather than the four-level reduction
    appropriate for a minimal participant. It is undisputed that Mr. Sanchez-Llamas
    failed to object to the PSR’s characterization of his role in the offense. As a
    result, Mr. Sanchez-Llamas waived the issue on appeal.
    Mr. Sanchez-Llamas’ argument therefore depends upon the narrow
    exception permitting appellate review of a district court’s determination as to the
    defendant’s level of participation in the offense even after defendant waives the
    issue at trial by failing to object to facts in the PSR. For us to apply this
    exception, we must find that the district court’s reliance upon the PSR—to which
    the defendant himself did not object—was plain error. Ivy, 
    83 F.3d at 1297
    . If
    the district court erred, we cannot say that its error was either obvious, egregious,
    or substantial, Saucedo, 
    950 F.2d at 1511
    , especially in light of the fact that
    defendant’s failure to object to the PSR at trial prevented the development of a
    factual record upon which to base such a determination, cf. United States v.
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    Easter, 
    981 F.2d 1549
    , 1556 (10th Cir. 1992) (“plain error review is not
    appropriate when the alleged error involves resolution of factual disputes”). We
    hold, therefore, that Mr. Sanchez-Llamas waived the issue of whether he was a
    minor or a minimal participant in the offense and that the narrow exception
    allowing appellate review after such waiver does not apply.
    B.    Ineffective Assistance
    Mr. Sanchez-Llamas argues in the alternative that his trial counsel was
    ineffective for failing to request the four-level reduction in sentence to which Mr.
    Sanchez-Llamas now argues he was entitled.
    We do not ordinarily consider ineffectiveness claims on direct appeal
    because the record on direct appeal is insufficiently developed as to “the tactical
    reasons for trial counsel’s decisions, the extent of trial counsel’s alleged
    deficiencies, and the asserted prejudicial impact on the outcome of the trial.”
    Beaulieu v. United States, 
    930 F.2d 805
    , 807 (10th Cir. 1991), overruled in part
    by United States v. Galloway, 
    56 F.3d 1239
    , 1241 (10th Cir. 1995). Such claims
    are more appropriately brought by collateral attack under 
    28 U.S.C. § 2255
    because that mechanism permits the determination of these essential facts.
    Galloway, 
    56 F.3d at 1240
    . We dismiss virtually all such claims without
    prejudice to permit both the appellant and his or her trial counsel to develop the
    appropriate facts for consideration by the district court. See 
    id. at 1240
    .
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    For these reasons, and despite the fact that both the government and Mr.
    Sanchez-Llamas urge us to reach the merits of his ineffective assistance claim, we
    dismiss it without prejudice.
    ENTERED FOR THE COURT,
    Deanell Reece Tacha
    Chief Circuit Judge
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