United States v. Abel Rangel , 781 F.3d 736 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7445
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ABEL CASTILLO RANGEL,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:95-cr-00486-CMH-4; 1:13-cv-00050-CMH)
Argued: December 10, 2014 Decided: April 1, 2015
Before DUNCAN, AGEE, and HARRIS, Circuit Judges.
Affirmed by published opinion. Judge Agee wrote the opinion, in
which Judge Duncan and Judge Harris joined.
ARGUED: Sejal Jhaveri, UNIVERSITY OF VIRGINIA SCHOOL OF LAW,
Charlottesville, Virginia, for Appellant. Stephen Wiley Miller,
OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee. ON BRIEF: Stephen L. Braga, Appellate Litigation
Clinic, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville,
Virginia, for Appellant. Dana J. Boente, United States
Attorney, Rebeca H. Bellows, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.
AGEE, Circuit Judge:
Abel Castillo Rangel was convicted in 2010 of three counts
relating to marijuana trafficking and sentenced to 121 months of
incarceration. He later filed a motion to vacate his conviction
and sentence under 28 U.S.C. § 2255, alleging that his trial and
appellate counsel had rendered constitutionally ineffective
assistance. The district court denied his motion, and we
granted a certificate of appealability identifying three issues:
1) whether Rangel’s trial counsel was ineffective for not
requesting an instruction that the jury find a drug weight based
on the amount attributable to or reasonably foreseeable by
Rangel; 2) whether his appellate counsel was ineffective for not
raising the failure to request that instruction as an issue on
direct appeal; and 3) whether his trial counsel was ineffective
for failing to object to the drug weight and advisory guidelines
range at sentencing. For the reasons explained below, we affirm
the district court’s judgment.
I. Background
On November 28, 1995, a federal grand jury in Alexandria,
Virginia indicted Rangel and five co-defendants for crimes
related to marijuana trafficking. The indictment charged Rangel
in four counts: Count 1 for conspiracy to distribute over 1,000
kg of marijuana from 1990 through 1995 (21 U.S.C. § 846); Count
2
4 for possession with intent to distribute marijuana on
September 30, 1992 (21 U.S.C. § 841(a)); Count 7 for
distribution of marijuana on October 1, 1992 (21 U.S.C.
§ 841(a)); and Count 10, which was later dismissed, asserting
forfeiture allegations.
Following his indictment, Rangel absconded to Texas,
assumed an alias, and evaded arrest until March 23, 2010. He
was subsequently tried by a jury and found guilty on the charges
in the indictment on August 25, 2010.
A. Trial Evidence
The government presented six witnesses at trial: four law
enforcement officers and two of Rangel’s coconspirators.
Fairfax County Detective Chester Toney testified that on
September 30, 1992, he responded to a tip from a confidential
informant about an upcoming marijuana transaction at a 7-Eleven.
Detective Toney observed three men at that location, including
an individual later identified as Michael Hillman, exit Rangel’s
pickup truck carrying a bag that appeared to contain marijuana.
Police officers stopped and searched the three men and found
1.95 pounds (0.89 kg) of marijuana on Hillman. Rangel was not
arrested at that time.
The next day, October 1, 1992, the informant told Detective
Toney that a second marijuana transaction would take place that
night at a McDonalds. At the McDonalds, Detective Toney saw
3
Rangel’s pickup truck and observed Rangel and another man exit
the restaurant together. The men were then detained by police,
and officers found Rangel with $1,369 in cash and the other man
with $2,060 and 2 pounds (0.91 kg) of marijuana. Both men were
arrested and charged.
Fairfax Police Department Lieutenant William Kitzerow
testified about executing a search warrant for Rangel’s
residence on February 17, 1993, four and a half months after the
McDonalds arrest. Officers found three bricks of marijuana on a
shelf in a bedroom closet and three additional bags of marijuana
in a black bag underneath some clothing. The combined marijuana
weighed 5.25 pounds (2.39 kg).
Two of Rangel’s alleged coconspirators, Michael Hillman and
Ronnie Cadle, testified against him at trial about a broad
marijuana trafficking operation. Hillman stated that he was
involved with the trafficking operation from late 1990 through
his September 30, 1992 arrest at the 7-Eleven. The group
included approximately seven people, and Cadle and Hillman
identified particular members of the operation by the names
Lilo, Gringo, Leo, Flaco, and Rangel. Evidence seized from
Rangel’s apartment corroborated his association with some of
these individuals: a phonebook found in the bedroom contained
entries for “Laylo” and “Gringo,” and his wallet contained a
business card for Lalo Maltos. J.A. 341.
4
Hillman testified that he first became involved with the
group in December 1990, when he was approached by Lilo, who
offered to front him marijuana for resale. Subsequently,
Hillman met Lilo “hundreds” of times, “[g]enerally, at his
trailer in Chantilly,” to buy single pounds of marijuana, which
Lilo usually took from a stash of three to five pounds (1.36 to
2.27 kg). Id. at 113-14. In addition to Lilo, Hillman would
see Gringo, Rangel, and others at the trailer. Specifically,
Hillman testified that he “used to run into Abel [Rangel] at the
trailer” and that “he sold me pot.” Id. at 120. He testified
that his September 30, 1992 arrest was the result of his attempt
to buy one kilogram of marijuana from Rangel on behalf of his
uncle, one of the other men present at the 7-Eleven.
According to Hillman, at some point, Lilo offered him
$8,000 to drive to Mexico to pick up marijuana. In Mexico,
Hillman visited a “farm thing in the country” where he saw “a
big patch of marijuana growing” that “might have been an acre or
a half acre.” Id. at 117-18. He got two “potato sacks” of
marijuana at “[m]aybe 20, 30, 40 pounds a sack” (13.6 to 22.7
kg). Id. at 118. A barn contained “tons of sacks” that he
“th[ought]” contained marijuana, but which “[c]ould have been
potatoes.” Id. Hillman then drove to a designated spot in the
United States, where he retrieved the marijuana acquired in
Mexico from a person who had carried it across the border for
5
him in waterproof suitcases. Hillman and others packaged the
marijuana in San Antonio, Texas and then took approximately 40
or 50 pounds (18.1 to 22.7 kg) of marijuana back to Virginia
hidden in tires. During another trip, financed by Lilo, Hillman
flew to Texas and rode a bus back to Virginia with approximately
30 to 40 pounds (13.6 to 22.7 kg) of marijuana.
Hillman estimated that he made between 5 and 10 trips to
San Antonio to pick up marijuana. He also introduced Cadle to
Lilo, and Cadle also began to make trips to San Antonio. Cadle
testified that he made between 7 and 10 trips. At least one of
Cadle’s trips was with Hillman, but the extent of the overlap is
unclear from their testimony.
Cadle testified that the group, including Rangel,
instructed him to drive to San Antonio along a particular route.
There, he would purchase marijuana, load it into the vehicle,
and return to Virginia along another route that the group had
also selected. Cadle testified that Rangel and Leo were his
primary contacts for his final three trips. He “was paid a
hundred dollars per pound” of marijuana he transported and made
“25- to $50,000 in cash” bringing marijuana from Texas. Id. at
71, 100. Each trip normally involved 50 pounds (22.7 kg) of
marijuana.
During one trip in August 1992, Rangel and Leo accompanied
Cadle to San Antonio. Trooper Jackie Clark testified at trial
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that he stopped the men on Interstate 40 in Arkansas. He
searched Cadle’s car and found $21,000 in cash in two paper
sacks under the backseat. He seized the $21,000, but let the
three men go. They continued toward San Antonio. Based on what
Cadle could understand of the conversation Rangel and Leo had in
Spanish after the stop, he “came to the realization not to worry
about it” because “[t]here was more money in the car.” Id. at
79-80. He believed the additional money was “in the range of
between” $60,000 and $80,000. Id. at 79.
Cadle testified that upon their arrival in San Antonio,
Rangel and Leo told him to leave his car and take a Greyhound
bus back to Virginia. Cadle took the bus, carrying a suitcase
containing approximately 50 pounds (22.7 kg) of marijuana. When
he arrived in Virginia, Gringo picked him up at the bus station
and took him to an apartment to meet Leo and Rangel. Cadle left
the suitcase there, and two weeks later he drove back to San
Antonio, retrieved his vehicle, and returned with another
delivery of about 50 pounds of marijuana.
Cadle described the trip that led to his arrest in
Mississippi on September 4, 1993. He flew to Dallas, Texas
where he met Rangel and Leo, and they rented a 1988 Ford
Thunderbird, which Cadle was tasked with driving back to
Virginia. Officer David Pinson testified about stopping Cadle
in the Thunderbird in Mississippi on September 4, 1993. Hidden
7
between the car’s grille and radiator, he found several packages
of marijuana, weighing a total of 27 pounds (12.2 kg).
Cadle also testified that he went to Lilo’s trailer in
Chantilly “[d]ozens of times.” Id. at 74. Although Hillman
testified Rangel was sometimes present when Hillman picked up
pounds of marijuana, Cadle testified that he was “not really
sure if [he] saw [Rangel] at the trailer” in Chantilly. Id.B. Rangel’s Verdict and Sentencing
The district court held a conference to discuss jury
instructions, but Rangel’s counsel did not request any
instruction regarding drug weight. Specifically, he did not
request an instruction that the jury determine drug weight based
on Pinkerton principles –- that is, based on drugs with which
Rangel was directly involved or drugs that were reasonably
foreseeable to him and in furtherance of the conspiracy. See
Pinkerton v. United States, 328 U.S. 640, 647-48 (1946).
In charging the jury, the only reference to drug weight
came in the court’s explanation to the jury of the Special
Verdict Form:
As to Count 1, if you should find the defendant guilty
as to Count 1, then underneath are amounts of drugs
and you should also check the amount that you find
that was involved as to Count 1.
8
J.A. 203. The court provided no instruction explaining how the
jury should determine the drug weight properly attributable to
Rangel under the Pinkerton framework.
The jury convicted Rangel on all counts and indicated on
the Special Verdict Form that the conspiracy “involved” more
than 1,000 kg of marijuana. Based on the conviction for
conspiring to distribute over 1,000 kg of marijuana, Rangel was
subject to a 120-month mandatory minimum sentence. See 21
U.S.C. § 841(b)(1)(A). The presentence report established his
advisory guideline range at 121 to 151 months. In advance of
sentencing, Rangel filed a statement in which he “denie[d]
having any part of the conspiracy” but did not make any
objection to the mandatory minimum sentence or guideline
calculation. J.A. 211.
Asked at sentencing whether he had anything to say on
Rangel’s behalf, his counsel replied, “Well there’s not much you
can say. It’s, unfortunately, a mandatory 120-month sentence
Mr. Rangel faces. . . . So we’d ask the Court to sentence him
to the low end of the guideline range and appoint new counsel
for the appeal.” Id. Rangel’s counsel did not address the
calculation of the drug weight. The district court judge
observed that “[c]onsidering the factors . . . under Section
3553 [is] sort of a useless endeavor in this case because
there’s a mandatory.” Id. at 215. The judge, nevertheless,
9
noted that he “simply [could not] think of any kind of a factor
that would weigh in [Rangel’s] favor.” Id.The district court sentenced Rangel to 121 months’
incarceration, the low end of his projected guidelines range, as
to each of Counts 1, 4, and 7, with the sentences to run
concurrently. This Court affirmed the judgment on appeal, and
the Supreme Court denied Rangel’s petition for a writ of
certiorari. United States v. Rangel, No. 10-5208, 2011 WL
5084583 (4th Cir. Oct. 26, 2011) (per curiam), cert. denied, 132
S. Ct. 1649 (2012).
C. Rangel’s § 2255 Petition
Rangel filed a pro se § 2255 petition to vacate his
conviction and sentence on January 10, 2013, raising fourteen
claims, two of which are the subject of this appeal. First, he
argued that his trial counsel rendered ineffective assistance by
failing to request a jury instruction regarding Pinkerton
principles and that his appellate counsel was also ineffective
in not raising the instruction’s absence as an issue on direct
appeal. (Below, we address this claim as two separate issues,
one as to trial counsel and one as to appellate counsel.)
Second, Rangel asserted that his trial counsel was ineffective
in failing to challenge the drug quantity and base offense level
at sentencing.
10
The district court denied Rangel’s § 2255 petition by
concluding in a Memorandum Opinion and Order that even if there
was an error regarding the jury instructions, Rangel could not
demonstrate prejudice because he was sentenced within the
applicable guideline range. The court further concluded that
Rangel’s trial counsel was not ineffective for failing to object
to the offense level and guideline range at sentencing because
of the jury’s finding and the presentence report, which
attributed 1,000 kg of marijuana to Rangel.
Rangel filed a timely notice of appeal, and we have
jurisdiction under 28 U.S.C. § 1291.
II. Discussion
When reviewing an appeal from the denial of a § 2255
motion, we review de novo the district court’s legal
conclusions. United States v. Poindexter, 492 F.3d 263, 267
(4th Cir. 2007).
To establish a claim of ineffective assistance of counsel,
a defendant must show (1) that “counsel’s performance was
deficient,” and (2) that “the deficient performance prejudiced
the defense.” Strickland v. Washington, 466 U.S. 668, 687
(1984). To satisfy the deficiency prong, the defendant must
show that counsel’s performance “fell below an objective
standard of reasonableness.” Id. at 688. “Judicial scrutiny of
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counsel’s performance must be highly deferential.” Id. at 689.
There is a “strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance,”
and “that, under the circumstances, the challenged action might
be considered sound trial strategy.” United States v. Higgs,
663 F.3d 726, 739 (4th Cir. 2011).
Under the prejudice prong, “[t]he 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.” Strickland, 466 U.S. at 694. There must be “a
probability sufficient to undermine confidence in the outcome”
of the trial. Id. However, a defendant is not required to
establish that “counsel’s deficient conduct more likely than not
altered the outcome of the case.” Id. at 693.
A. Jury Instructions under Collins
Rangel bases his claim of jury instruction error on this
Court’s decision in United States v. Collins, 415 F.3d 304 (4th
Cir. 2005). In that case, we considered on direct appeal the
district court’s failure to give an instruction “that, for
purposes of setting a specific threshold drug quantity under
§ 841(b), the jury must determine what amount of cocaine base
was attributable to [a drug conspiracy defendant] using
Pinkerton principles.” Id. at 314.
12
We concluded the failure to give such an instruction was
error, but because the error concerned only the statute’s
penalty provision, the conspiracy conviction was “sound” under
§ 846. 1 Id. Further, we recognized that without the instruction
the sentence given “effectively attributed to [the defendant],
an individual member of the conspiracy, the quantity of cocaine
base distributed by the entire conspiracy.” Id. As a
consequence, “[b]ecause the district court adopted the jury’s
drug quantity determination in its application of the sentencing
guidelines, the error affected both the threshold statutory
range under § 841(b) and the district court’s application of the
guidelines.” Id. Because the district court’s sentence in
Collins was based on the jury’s invalid drug quantity
determination, it “c[ould ]not stand.” Id.
The government concedes that the district court’s failure
to instruct the jury to find a drug weight properly attributable
to Rangel based on Pinkerton principles was error under Collins.
1. Trial Counsel
Rangel first argues that his trial counsel rendered
ineffective assistance because he did not request an instruction
stating that the jury must determine drug weight using Pinkerton
1
As in Collins, Rangel’s underlying conviction is “sound”
and there is no issue in this appeal as to his conviction, but
only as to the sentence he received.
13
principles. The district court rejected this argument,
reasoning that even if trial counsel’s performance was deficient
under Strickland, the error resulted in no prejudice. 2 The
district court observed that Rangel “would nonetheless face a
maximum term of twenty years imprisonment on Counts One, Four,
and Seven” under the default penalty provision for marijuana.
J.A. 409 (citing 21 U.S.C. § 841(b)(1)(C)). Regarding the
guideline range, the district court found that the probation
officer had “more than a sufficient basis” from evidence
presented at trial to determine by a preponderance of the
evidence that Rangel was accountable for over 1,000 kg of
marijuana. Id.; see also U.S.S.G. § 1B1.3; United States v.
Carter, 300 F.3d 415, 425 (4th Cir. 2002) (discussing the
preponderance standard at sentencing). Thus, the base offense
level –- which derived from the drug weight -- would remain the
same, and the guideline range would remain at 121 to 151 months.
The district court concluded that because Rangel’s 121-month
sentence was within “the statutory range of zero to twenty
years,” he “suffered no prejudice as a result of the alleged
2
On appeal, the government also argues that Rangel’s trial
counsel’s failure to request the instruction was not deficient
performance under Strickland’s first prong. The government
reasons that the decision was a matter of trial strategy because
Rangel’s defense focused on actual innocence, not drug weight.
Given that the request would have taken place outside of the
jury’s presence, the government’s argument has no merit, and in
any event, was not raised below and appears to have been waived.
14
failure of his counsel to object to the Court’s jury
instructions.” J.A. 409.
We agree with the district court in part. In finding that
the statutory range would be 0 to 20 years under the default
penalty provision for marijuana, the district court
misidentified 21 U.S.C. § 841(b)(1)(C) as the controlling
subsection. While that would be correct for most drugs, the
default sentencing provision for marijuana is found in
§ 841(b)(1)(D), which specifies that “[i]n the case of less than
50 kilograms of marihuana . . . such person shall . . . be
sentenced to a term of imprisonment of not more than 5 years.”
The default statutory term for marijuana is thus 0 to 5 years
rather than 0 to 20 years as the district court stated.
That mistake is without consequence here, however, as the
district court was not constrained to review its sentence under
only the default provision. Although resentencing under the
default provision is a potential remedy for a successful direct
appeal of a Collins error, a court’s review of a Collins error
for prejudice in the § 2255 context is not so constrained.
Under Strickland, Rangel must show a reasonable probability of a
different result, “sufficient to undermine confidence in the
outcome” of the trial. 466 U.S. at 694. We do not find that
Rangel meets that standard.
15
Our review of the record shows that Rangel’s sentence would
have been the same even with a proper jury instruction. First,
there is no reasonable probability that a proper jury finding
would have resulted in a statutory range that precluded Rangel’s
121-month sentence. The jury would have needed to find Rangel
responsible for only 50 kg of marijuana to push the statutory
range from the 5-year maximum of § 841(b)(1)(D) to the 20-year
maximum under § 841(b)(1)(C). In light of the overwhelming
evidence that Rangel was responsible for substantially more than
50 kg of marijuana –- in particular, the multiple drug purchases
in Texas -- there was no reasonable probability that the jury
would have attributed less than 50 kg to Rangel. Rangel’s
statutory sentence range, then, would have had a maximum of at
least 20-years, far exceeding his ultimate 121-month sentence.
Having concluded that the district court could have imposed
a 121-month sentence had the Collins error not occurred, the
question then becomes whether the district court would have
imposed that sentence. Collins recognizes that if the district
court “adopted the jury’s drug quantity determination in its
application of the sentencing guidelines,” then that error will
have “affected both the threshold statutory range under § 841(b)
and the district court’s application of the guidelines.” 415
F.3d at 314. Consequently, Rangel must show a reasonable
probability that, but for the Collins error, the district court
16
would have found him responsible for less than 1,000 kg, the
amount that placed him in the 121- to 151-month guideline range.
The record demonstrates that in all likelihood, even
without the Collins error, the district court would have found
by a preponderance of the evidence that Rangel was responsible
for 1,000 kg of marijuana. First, the jury established beyond a
reasonable doubt that the conspiracy involved at least 1,000 kg,
and there is no basis to conclude that Rangel would not have
reasonably foreseen the conspiracy’s full scope. Further, the
trial testimony established that Rangel was a management figure
in the conspiracy and helped coordinate multiple large-scale
drug purchases. The record thus supports the district court’s
conclusion by a preponderance of the evidence that Rangel would
have foreseen the full scope of the conspiracy, with its
accompanying 1,000 kg of marijuana.
Moreover, independent of the jury finding, our review of
the record shows that the district court would have attributed
1,000 kg of marijuana to Rangel. He was a management figure in
a conspiracy that lasted several years, crossing half the
country, and even extending into Mexico. More than that, Rangel
was the point-man for numerous trips to Texas, where 50 pound
(22.7 kg) quantities of marijuana were regularly obtained. In
addition, Hillman testified as to the “hundreds” of times he
bought pound quantities at the trailer, often with Rangel
17
present, and taken from a multi-pound stash (0.45 kg per pound).
We thus conclude that the district court’s finding that Rangel
was responsible for 1,000 kg of marijuana was not the mere
adoption of the Collins-error jury finding.
Nor does the record support Rangel’s contention that the
10-year (120-month) statutory minimum affected his sentence.
The district court’s independent 1,000 kg finding resulted in a
121- to 151-month guideline range, and Rangel was sentenced at
the bottom of that range. As the district court explained in
denying Rangel’s habeas petition, “[e]ven without the jury’s
finding, the base offense level would have been 32 based on the
evidence presented at trial and the information contained in the
Presentence Report.” J.A. 411. Rangel emphasizes the judge’s
statement at sentencing that considering the § 3553 sentencing
factors was “sort of a useless endeavor in this case because
there’s a mandatory” minimum sentence, but that statement
addressed only the availability of a below-guideline sentence.
Id. at 215. It is clear from the sentencing transcript that the
district court considered Rangel undeserving of a below-
guideline sentence: the judge “simply [could not] think of any
kind of a factor that would weigh in [Rangel’s] favor.” Id.
In sum, the record supports the conclusion that a properly
instructed jury would have attributed at least 50 kg of
marijuana to Rangel, with a resulting statutory range of 0 to 20
18
years. That statutory range would have included the 121- to
151-month guideline range from the court’s independent 1,000 kg
finding at sentencing. In all likelihood, then, Rangel still
would have received the same guideline range and the same 121-
month sentence. Having failed to demonstrate a reasonable
probability of a different outcome, Rangel does not satisfy
Strickland’s prejudice prong on this issue. Rangel’s trial
counsel, therefore, did not render constitutionally ineffective
assistance by failing to request an instruction to determine
drug weight based on Pinkerton principles under Collins.
2. Appellate Counsel
For similar reasons, we conclude that Rangel was not
prejudiced by his appellate counsel’s failure to raise the
Collins error as an issue on direct appeal. 3 To show prejudice
in the context of appellate representation, a petitioner must
establish a “reasonable probability . . . he would have
prevailed on his appeal” but for his counsel’s unreasonable
failure to raise an issue. Smith v. Robbins, 528 U.S. 259, 285-
86 (2000); see also United States v. Mannino, 212 F.3d 835, 845-
46 (3d Cir. 2000) (“The test for prejudice under Strickland is
not whether petitioners would likely prevail upon remand, but
3
Because we resolve the claim under Strickland’s prejudice
prong, it is unnecessary to decide whether appellate counsel’s
omission of the Collins issue constituted deficient performance.
19
whether we would have likely reversed and ordered a remand had
the issue been raised on direct appeal.”).
Having reviewed the record in this case, we conclude that
Rangel’s Collins claim would not have had a reasonable
probability of success had it been raised on direct appeal.
Because Rangel did not raise the issue at trial, the standard of
review on appeal would have been plain error. To prevail, then,
he would have had to show that 1) an error occurred, 2) the
error was plain, and 3) the error affected his substantial
rights. United States v. Olano, 507 U.S. 725, 732 (1993); see
also Fed. R. Crim. P. 52. Affecting substantial rights, “in
most cases,” means that “the error must have been prejudicial:
It must have affected the outcome of the district court
proceeding.” Olano, 507 U.S. at 734. This outcome-based
standard is similar to Strickland’s prejudice inquiry. Compare
United States v. Marcus, 560 U.S. 258, 262 (2010) (prejudice, to
prove an effect on “substantial rights” for plain error review,
means “a reasonable probability that the error affected the
outcome of the trial”), with Strickland, 466 U.S. at 694(prejudice, to establish ineffective assistance, means “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different”). Finally, even with those three requirements met,
we need not correct a plain error that “did not seriously affect
20
the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Jeffers, 570 F.3d 557, 570 (4th
Cir. 2009) (declining to notice a Collins error that did not
seriously affect the trial’s fairness); see also Olano, 507 U.S.
at 736.
We have established that Collins errors satisfy the first
two requirements: an error occurred and the error was plain.
See, e.g., United States v. Foster, 507 F.3d 233, 251 (4th Cir.
2007). We conclude, however, that if there was error here, it
did not affect Rangel’s substantial rights because it did not
affect the ultimate outcome of the sentencing phase of his
trial. As explained above regarding Rangel’s trial counsel
claim, a properly instructed jury would have attributed in
excess of 50 kg to Rangel, which would authorize a statutory
maximum sentence of 20 years. Similarly, the district court
would have then found Rangel responsible for 1,000 kg of
marijuana by a preponderance of the evidence at sentencing, thus
setting the 121- to 151- month guideline range. Because that
finding would have resulted in the same 121-month sentence at
the low end of the guidelines that Rangel received, the outcome
would have been the same with or without a Collins error.
Again, the district court stated this plainly: “Even without the
jury’s finding, the base offense level would have been 32 based
on the evidence presented at trial and the information contained
21
in the Presentence Report.” J.A. 411. Rangel provides no
viable basis for his contention that the district court, despite
its express statement, would have found him responsible for some
lesser weight. See Olano, 507 U.S. at 734 (observing that on
plain error review, the petitioner bears the burden of
persuasion with respect to prejudice).
Because the record before us demonstrates that any Collins
error would not have affected Rangel’s substantial rights, a
direct appeal on that issue would have had limited chance of
success. Accordingly, Rangel does not demonstrate prejudice and
therefore did not receive constitutionally ineffective
assistance from his appellate counsel.
B. Argument at Sentencing
Rangel next contends that his trial counsel provided
ineffective assistance at sentencing by failing to challenge the
district court’s drug weight finding and the resulting guideline
range.
For our purposes, it is sufficient to assume deficient
performance and to turn again directly to the prejudice prong.
In doing so, we conclude that Rangel suffered no prejudice;
there is not a reasonable probability that he would have
received a more favorable outcome had his counsel challenged the
drug weight. As explained above, the district court found
Rangel responsible for 1,000 kg based on the evidence at trial,
22
the probation officer’s unchallenged representations, and the
evidence presented in the presentence report. We need not
speculate as to what the district court would have found, as it
wrote unequivocally that it found 1,000 kg attributable to
Rangel by a preponderance of the evidence, irrespective of the
jury’s finding. The guideline range and ultimate sentence flow
directly from the district court’s drug weight finding. Rangel
points to no argument or factor that his counsel should have
raised that the district court failed to consider and which
might have changed its view. He accordingly fails to establish
prejudice to support his claim that his trial counsel rendered
ineffective assistance at sentencing by failing to object to the
drug weight finding.
III.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
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