United States v. Sanchez ( 1998 )

  •                                                                     F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                                                                         JUN 11 1998
                      UNITED STATES COURT OF APPEALS
                                                                     PATRICK FISHER
                                  TENTH CIRCUIT
     v.                                                 Nos. 97-1219
     ANTHONY EDWARD SANCHEZ,                                 97-1233
     a/k/a Antonio Edward Sanchez,
                    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
    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.
          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
    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
          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
                  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.”
    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
          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).
          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
    the “rare [ineffective assistance] claims which are fully developed in the record
    [and which thus] may be brought . . . on direct appeal,” United States v.
    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.
    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.