United States v. Sanchez ( 1998 )


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  •                                                                     F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                                        PUBLISH
                                                                         JUN 11 1998
                      UNITED STATES COURT OF APPEALS
                                                                     PATRICK FISHER
                                                                              Clerk
                                  TENTH CIRCUIT
    
    
    
     UNITED STATES OF AMERICA,
    
                 Plaintiff-Appellee,
    
     v.                                                 Nos. 97-1219
                                                               &
     ANTHONY EDWARD SANCHEZ,                                 97-1233
     a/k/a Antonio Edward Sanchez,
    
                 Defendant-Appellant.
    
    
            APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLORADO
                    (D.C. Nos. 97-CR-35-D & 96-CR-338-D)
    
    
    Submitted on the briefs:
    
    Henry L. Solano, United States Attorney, Andrew A. Vogt, Assistant U.S.
    Attorney, Denver, Colorado, for Plaintiff-Appellee.
    
    David J. Richman of Burns, Figa, & Will, P.C., Englewood, Colorado, for
    Defendant-Appellant.
    
    
    Before PORFILIO, BARRETT, and HENRY, Circuit Judges.
    
    
    HENRY, Circuit Judge.
          After examining the briefs and appellate record, this panel has determined
    
    unanimously to grant the parties’ request for a decision on the briefs without oral
    
    argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. These cases are
    
    therefore ordered submitted without oral argument.
    
          In these consolidated direct appeals, defendant argues 1) the district court
    
    erred in imposing a sentence exceeding the applicable sentencing guideline range,
    
    pursuant to a Fed. R. Crim. P. 11(e)(1)(C) plea agreement; and 2) defense counsel
    
    provided ineffective assistance at sentencing. We lack jurisdiction to review
    
    defendant’s challenge to his sentence because he does not assert either that the
    
    sentence imposed was in violation of the law or that the sentence resulted from a
    
    misapplication of the guidelines. See 18 U.S.C. § 3742(a)(1) & (2), (c)(1). We
    
    conclude his ineffective assistance claim is without merit.
    
    
    
    I.    JURISDICTION TO CHALLENGE SENTENCE
    
          18 U.S.C. § 3742 provides for only limited appellate review of federal
    
    sentences. See Koon v. United States, 
    518 U.S. 81
    , 96 (1996). Section
    
    3742(c)(1) provides that, where, as here, defendant received the specific sentence
    
    provided by a Rule 11(e)(1)(C) plea agreement, he “may not file a notice of
    
    
    
    
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    appeal” under § 3742(a)(3) or (4). 1 See United States v. Denogean, 
    79 F.3d 1010
    ,
    
    1013 (10th Cir. 1996); cf. United States v. Veri, 
    108 F.3d 1311
    , 1315 (10th Cir.
    
    1997) (where defendant received sentence called for in Rule 11(e)(1)(C) plea
    
    agreement, this court did not have appellate jurisdiction to review sentence).
    
          A defendant receiving a sentence under a Rule 11(e)(1)(C) plea agreement
    
    may appeal only when his sentence “was imposed in violation of law [or] was
    
    imposed as a result of an incorrect application of the sentencing guidelines,” 18
    
    U.S.C. § 3742(a)(1) & (2). See Denogean, 79 F.3d at 1013-14. In this appeal,
    
    defendant does not argue that his sentence was in violation of law. See, e.g.,
    
    United States v. Littlefield, 
    105 F.3d 527
    , 528 (9th Cir.) (sentence within
    
    statutory maximum did not violate law for purposes of § 3742(a)), cert. denied,
    
    
    117 S. Ct. 2423
     (1997)..
    
          Nor does he assert that the sentence imposed resulted from a misapplication
    
    of the guidelines. When initially proposed, the parties mistakenly believed, and
    
    the plea agreement erroneously indicated, that the 206-month sentence provided
    
    in the agreement was within the applicable guideline range. Nonetheless, at the
    
    time the district court accepted the plea agreement at the sentencing hearing, all
    
    
    
          1
                  Subsections (a)(3) and (4) of § 3742 allow an appeal from a sentence
    that “is greater than the sentence specified in the applicable guideline range [or]
    was imposed for an offense for which there is no sentencing guideline and [the
    sentence] is plainly unreasonable.”
    
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    parties were aware that, under the proper application of the guidelines, the
    
    206-month sentence was actually in excess of the applicable sentencing range.
    
    Defendant had the opportunity to withdraw his plea in light of the initial
    
    miscalculation of the sentencing range, but he declined to do so and again agreed
    
    to the imposition of the 206-month sentence. See United States v. Libretti, 
    38 F.3d 523
    , 529-30 (10th Cir. 1994) (holding defendant was bound by plea
    
    agreement, where district court thoroughly assessed whether defendant understood
    
    consequences of guilty plea), aff’d, 
    516 U.S. 29
     (1995).
    
          On appeal, therefore, defendant challenges only the propriety of the district
    
    court’s imposition of a sentence in excess of the applicable guideline range,
    
    pursuant to the express terms of the Rule 11(e)(1)(C) agreement. Section
    
    3742(c)(1) specifically precludes defendant’s appeal based upon this issue. See
    
    United States v. Trujeque, 
    100 F.3d 869
    , 870 (10th Cir. 1996) (in dicta); United
    
    States v. Prieto-Duran, 
    39 F.3d 1119
    , 1120 (10th Cir. 1994).
    
    
    
    II.   INEFFECTIVE ASSISTANCE OF COUNSEL
    
          Defendant also argues that defense counsel provided ineffective assistance
    
    at sentencing by failing to detect the errors in the initial calculation of the
    
    sentencing range and in failing to object to the district court’s imposition of a
    
    sentence in excess of the applicable guideline range. Deeming these claims to be
    
    
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    the “rare [ineffective assistance] claims which are fully developed in the record
    
    [and which thus] may be brought . . . on direct appeal,” United States v.
    
    Galloway, 
    56 F.3d 1239
    , 1242 (10th Cir. 1995) (en banc), we conclude defendant
    
    is not entitled to relief because he is unable to show the requisite prejudice
    
    resulting from counsel’s purportedly ineffective representation, see Strickland v.
    
    Washington, 
    466 U.S. 668
    , 692 (1984). Cf. United States v. Carter, 
    130 F.3d 1432
    , 1442 (10th Cir. 1997) (counsel did not provide ineffective assistance where
    
    defendant, “armed with full knowledge of the ramifications of his decision,”
    
    rejected plea agreement), petition for cert. filed (U.S. Apr. 20, 1998)
    
    (No. 97-8838).
    
          We, therefore, DISMISS defendant’s claim challenging his sentence, for
    
    lack of appellate jurisdiction, and otherwise AFFIRM the judgment of the United
    
    States District Court for the District of Colorado.
    
    
    
    
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