United States v. Macias , 306 F. App'x 409 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
December 11, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 08-4021
v. (D.C. No. 2:06-CR-111-DAK)
(D. Utah)
SAUL GARCIA MACIAS,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before O’BRIEN, EBEL, and GORSUCH, Circuit Judges.
Defendant-Appellant Saul Garcia Macias pled guilty to (1) violating 21
U.S.C. § 841(a)(1), possession with intent to distribute a controlled substance, (2)
violating 18 U.S.C. § 1546(1), possession of a false immigration document, and
(3) violating 18 U.S.C. § 1028A, aggravated identity theft. Macias now appeals,
raising issues with respect to his sentence as well as the district court’s denial of
*
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) and 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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
his motion to suppress. Macias’s counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and moved for leave to withdraw; Macias
submitted a supplemental brief in response to the Anders brief which argued
ineffective assistance of trial counsel and requested appointment of new counsel.
Having throughly reviewed the record and considered each brief, we grant
counsel’s motion to withdraw, deny Macais’s request for appointment of new
counsel, and affirm.
I. BACKGROUND
As stipulated in Macias’s plea agreement, the conduct giving rise to his
indictment occurred on February 2, 2006. On that date, Macias and his co-
defendant Jacqueline Fodness were driving his truck, with approximately six
pounds of methamphetamine hidden within a secret compartment in the vehicle,
from Los Angeles to Sioux Falls, South Dakota. At the time of Macias’s arrest,
in Utah en route, Macias was found in possession of the methamphetamine as well
as a green card which had previously been issued to another individual.
Macias moved to suppress all of the evidence that the government had
obtained against him from the search of his truck. The motion was referred to a
magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B), who subsequently held an
evidentiary hearing on the motion. The magistrate issued a report and
recommendation on November 13, 2006, which recommended that Macias’s
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motion be denied. Macias did not object to the report and recommendation,
which the district court adopted on December 19, 2006.
Thereafter, Macias pled guilty to all three counts in the indictment: (1)
violating 21 U.S.C. § 841(a)(1), possession with intent to distribute a controlled
substance, (2) violating 18 U.S.C. § 1546(1), possession of a false immigration
document, and (3) violating 18 U.S.C. § 1028A, aggravated identity theft. Under
the terms of the plea, Macias specifically reserved the right to appeal the denial of
the motion to suppress.
Having accepted Macias’s guilty plea, a Presentence Report was prepared,
which determined Macias’s total offense level was 35, and his criminal history
category to be II. Macias’s total offense level coupled with his criminal history
category resulted in a guideline sentence range of 188 to 235 month’s
imprisonment. U.S.S.G. (2006). Macias filed a motion requesting the district
court to grant a downward departure to the minimum mandatory sentence for his
crimes, 144 months. The district court sentenced Macias to 166 months’
imprisonment, 22 months below the guideline range. In so doing, the court
stated:
This is an interesting case. It’s very rare that somebody just
pleads straight up to all the counts, but he did what he did.
I’m going to sentence him to 166 months. . . . The 166
months is a long time. I think it is correct there is some disparity
under 3553 with this defendant and [his co-defendant] Ms. Fodness
[who received a sentence of 120 months].
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Macias now timely appeals.
II. DISCUSSION
In Anders, the Supreme Court held that “if counsel finds his case to be
wholly frivolous, after a conscientious examination of it, he should so advise the
court and request permission to withdraw.” 386 U.S. at 744. This court “must
then conduct a full examination of the record to determine whether defendant's
claims are wholly frivolous. If [we] conclude [ ] after such an examination that
the appeal is frivolous, [we] may grant counsel’s motion to withdraw and may
dismiss the appeal.” United States v. Calderon, 428 F.3d 928, 930 (10th
Cir.2005).
Counsel’s brief appears to identify two potential issues for appeal: (1) the
district court’s denial of Macias’s motion to suppress, and (2) the reasonableness
of Macias’s sentence. In addition to counsel’s brief, Nelson has filed a
supplemental brief asserting ineffective assistance of counsel. Each of these
matters will be considered in turn.
A. Motion to Suppress
Macias’s counsel asserts that there is no non-frivolous ground on which
Macias may challenge the district court’s denial of his motion to suppress.
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Having engaged in a full examination of the record, as required by Anders, we
agree.
Macias filed a motion to suppress, arguing that the stop and subsequent
search of his vehicle violated the Fourth Amendment. Macias’s motion was
referred to a magistrate judge, and the magistrate recommended denying the
motion in a report and recommendation. Macias did not object to the report and
recommendation, and the district court adopted the magistrate’s report. We agree
with Macias’s counsel that Macias’s failure to object to the magistrate’s judge’s
report and recommendation is fatal to this claim.
“This court has adopted a firm waiver rule under which a party who fails to
make a timely objection to the magistrate judge’s findings and recommendations
waives appellate review of both factual and legal questions.” Morales-Fernandez
v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005). There are two exceptions to the
waiver rule: “when (1) a pro se litigant has not been informed of the time period
for objecting and consequences of failing to object, or when (2) the ‘interests of
justice’ require review.” Id. The first exception does not apply, because Macias
was represented by counsel before the district court and the magistrate’s report
warned that a “[f]ailure to file objections to factual and legal findings may
constitute a waiver of those objections on subsequent appellate review.” The
second exception also does not apply. In Morales-Fernandez we held that “[i]n
many respects, the interests of justice analysis we have developed, which
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expressly includes review of a litigant’s unobjected-to substantive claims on the
merits, is similar to reviewing for plain error,” 418 F.3d at 1120, and that “[a]t a
minimum ... our ‘interest of justice’ standard for determining whether we should
excuse a defendant’s failure to object to a magistrate judge’s recommendation
includes plain error,” id. at 1122. When there are no mitigating factors regarding
a litigant’s failure to object, the “interest of justice” test requires only analysis for
plain error. See Zumwalt v. Astrue, 220 Fed. App’x. 770, 778 (10th Cir. Mar. 22,
2007) (unpublished). Here, there are no mitigating factors regarding Macias’s
failure to comply with the requirement to object to the magistrate’s
recommendation and report and, therefore, our only concern is plain error.
“Plain error occurs when there is (1) error, (2) that is plain, which (3)
affects substantial rights, and which (4) seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Morales-Fernandez, 418 F.3d at
1122-23 (internal quotation marks omitted). “[A]n error is ‘plain’ if it is clear or
obvious at the time of the appeal.” Id. at 1124. Macias argued below that Officer
Nick Bowles, the arresting officer, violated his Fourth Amendment rights by
conducting both an illegal stop and an illegal search of Macias’s vehicle.
We discern no plain error here. Officer Bowles was initially justified in
stopping Macias because he observed Macias’s pick-up truck following the
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vehicle in front of it too closely, which is a violation of Utah law. 1 See United
States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995). After completing a
check on Macias’s license and registration, Officer Bowles issued Macias a
warning, returned Macias’s documents and told Macias that he was free to leave.
When Macias reached his vehicle, Officer Bowles asked if could talk with
Macias, thus turning the situation into a consensual encounter. See United States
v. Wallace, 429 F.3d 969, 974-75 (10th Cir. 2005). After some questioning,
Macias proceeded to grant Officer Bowles consent to search the vehicle. Macias
contended that Officer Bowles exceeded the scope of that consent when he pulled
up the carpet on the floor of the driver’s side of Macias’s truck and then used a
crow bar to pry up a steel plate under the driver’s seat, revealing a secret
compartment. However, Macias never revoked consent and this court has “upheld
. . . searches involving the partial dismantling of a vehicle pursuant to general
consent when the defendant did not object.” United States v. Gregoire, 425 F.3d
872, 880 (10th Cir. 2005) (upholding search “that began with the drilling of two
holes in the interior and concluded with a large screwdriver used to pry away a
portion of the undercarriage of the vehicle to reveal the contraband”).
1
Following a vehicle more closely than is reasonable in light of the
vehicle’s speed and traffic conditions is a violation of Utah Code Ann. § 41-6a-
711(1).
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B. Macias’s Sentence
Macias’s counsel asserts that there is no non-frivolous ground on which
Macias may challenge either the procedural or substantive reasonableness of his
sentence. Having engaged in a full examination of the record, as required by
Anders, we agree. The district court properly calculated Macias’s guideline range
sentence and considered Macias’s request for a downward departure, together
with the § 3553(a) sentencing factors, and the uncontested facts in the presentence
report. Thereafter the district court sentenced Macias to 22 months less than the
advisory guideline range, “departing lightly [from the guideline range] under
3553.” The sentence imposed by the district court, which was below the
guideline range, is entitled to a presumption of reasonableness when challenged
by defendant. See United States v. Conteras-Mirelas, No. 08-2092, 2008 WL
4793832, at *3 (10th Cir. Nov. 5, 2008). Based on our review of the record, we
find no basis on which this presumption can be overcome.
C. Ineffective Assistance of Counsel
In his pro se filing, Macias argues that his trial counsel provided ineffective
assistance by failing to object to the magistrate’s report and recommendation on
Macias’s motion to suppress. Macias’s ineffective assistance of counsel claim is
more appropriately brought on collateral review in a 28 U.S.C. § 2255 motion.
See United States v. Brooks, 438 F.3d 1231, 1242 (10th Cir. 2006). “The purpose
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of this rule is to ensure that we are provided with a developed factual record of
the events.” Id. Therefore, Macias’s claims in this regard are premature.
III. CONCLUSION
Based on the foregoing, we GRANT counsel’s motion to withdraw and
DENY Macias’s request for appointment of new counsel. This appeal is
DISMISSED, and the judgment is AFFIRMED.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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