United States v. Sagaste-Cruz ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 29, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
No. 05-8071
v. (D.C. No. 04-CR-152-ABJ)
(D . W yo.)
JESUS M AR TIN SAGA STE-CRU Z,
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before KELLY, M cKA Y, and O’BRIEN, Circuit Judges.
Defendant-Appellant Jesus M artin Sagaste-Cruz appeals from his
conviction and sentence following a jury verdict finding him guilty of conspiring
to traffic in methamphetamine in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), and 846. M r. Sagaste-Cruz was sentenced to life imprisonment and
a $2,500 fine. The jury’s verdict included a finding that the amount of
methamphetamine exceeded forty-five kilograms. M r. Sagaste-Cruz also received
a two-level upward adjustment based on a co-conspirator’s possession of a
*
This order and judgment is not binding precedent, except under the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.
firearm during the offense, see United States Sentencing Guidelines § 2D1.1(b)(1)
(2004) (“U.S.S.G.” or “Guidelines”), and a four-level upward adjustment for an
aggravating role in the offense as an organizer or leader. See U.S.S.G. § 3B1.2.
On appeal, M r. Sagaste-Cruz challenges his sentence, contending that: (1)
the district court erred in imposing a life sentence because that sentence was
based on erroneous post-trial findings of fact and that his sentence is
unreasonable under United States v. Booker, 543 U.S. 220 (2005); (2) the district
court plainly erred in allowing the introduction of evidence concerning his prison
record, street gangs, evidence of other unrelated drug activity in the area w here
M r. Sagaste-Cruz was living, and evidence relating to multiple conspiracies
supported by co-conspirator hearsay; (3) the government failed to timely file and
serve M r. Sagaste-Cruz with the required information relating to its pursuit of an
enhancement under 21 U.S.C. § 851; (4) M r. Sagaste-Cruz’ trial counsel was
ineffective, and he w as denied a fair trial; and (5) the district court’s jury
selection procedure violated his right to a fair trial. Our jurisdiction arises under
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.
Background
In recounting the evidence, we view the facts in the light most favorable to
the verdict. M r. Sagaste-Cruz and his brother Julio Sagaste-Cruz (“Julio”) are
M exican nationals. M r. Sagaste-Cruz was arrested in September 1996 and
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charged with distributing methamphetamine in South Dakota. He was convicted
and sentenced to ten years imprisonment. The sentence was commuted, and he
was deported to M exico in July 1998. He illegally reentered the U nited States a
few months later.
In the mid-1990s, M r. Sagaste-Cruz and Julio operated their
methamphetamine distribution operation out of Ogden, Utah. At trial, testimony
indicated that while M r. Sagaste-Cruz was incarcerated, Julio became acquainted
with Patricio Pena, and shortly thereafter, in the spring of 1997, M r. Pena began
transporting methamphetamine for Julio from Ogden and selling it in Riverton,
W yoming, where he lived. In 1998, Julio met Brenda Hillian, and she began
selling methamphetamine for him in 2001.
M r. Sagaste-Cruz returned from M exico in the fall of 1998. Around this
time, M r. Pena introduced Julio to one of his Riverton customers, Vance Gilliam,
because he knew that M r. Gilliam needed to make money. M r. Gilliam began
transporting bulk quantities of methamphetamine from Los Angeles to Ogden for
Julio. M r. Gilliam also began transporting methamphetamine from Ogden to
Riverton at the direction of both M r. Sagaste-Cruz and Julio. Aplt. App. at 454,
462. There was some disagreement between Julio and M r. Pena, however, and
Julio and M r. Sagaste-Cruz discontinued their dealings w ith M r. Pena. Julio
married Kristy Kucera, and she began transporting methamphetamine from Ogden
to Riverton as w ell.
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In M arch of 2002, M ike and Sheryl Griebel began selling
methamphetamine for M r. Sagaste-Cruz in Riverton. According to their
testimony, M r. Sagaste-Cruz would either personally deliver the
methamphetamine or one of his Riverton distributors would do so. After her
husband was arrested and incarcerated for distributing methamphetamine, M rs.
Griebel began selling the methamphetamine she obtained from M r. Sagaste-Cruz.
One of her customers, Shane Pingree, took over her customer base at the request
of M r. Sagaste-Cruz when she was arrested. Lastly, Geraldine Blackburn, a
methamphetamine user in Riverton, testified that she witnessed M r. Sagaste-Cruz
conducting drug transactions in her home and ordering her boyfriend Carlos 1 to
distribute quantities of methamphetamine and collect payments. Around this
same time M s. Blackburn began selling to various other users in Riverton and on
the W ind River Indian Reservation.
According to the Pre-Sentence Report (“PSR”), M r. Sagaste-Cruz was
responsible for more than 61.2 kilograms of methamphetamine. The PSR
determined that whether the court utilized 61.2 kilograms, or the 45 kilograms
used by the jury, the result would be the same. The PSR recommended that M r.
Sagaste-Cruz receive a two-level upward adjustment because it was reasonably
foreseeable to M r. Sagaste-Cruz that M r. Gilliam was carrying a firearm while
1
Carlos was later identified as M arcelino Rocha and Juan Carlos M endoza.
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participating in the conspiracy. It also suggested a four-level upward adjustment
for M r. Sagaste-Cruz’ supervisory role in the offense. As such, the adjusted
offense level was 44, and together with M r. Sagaste-Cruz’ criminal history
category of III, the guideline range was life imprisonment.
Discussion
A. District Court’s Factual Findings
M r. Sagaste-Cruz first argues that the district court erred in imposing a life
sentence because that sentence was based on erroneous post-trial factual findings.
He contends that the government was required to prove the upward adjustments
under § 2D 1.1(b)(1) and 3B1.1(a) to the jury. The government disagrees,
contending that the district court’s findings were permissible under Booker.
M r. Sagaste-Cruz argues that, following Booker, the district court erred in
calculating his sentence. He has properly preserved this argument by objecting at
sentencing that, under Blakely v. W ashington, 542 U.S. 296 (2004) and Booker,
the district court erroneously took into account judge-found facts in applying a
four-level upward adjustment to his base offense level. The district court adopted
the PSR’s recommendations for the two upward adjustments. W here a defendant
preserves a potential Booker error, w e will remand unless the error is harmless.
See United States v. Labastida-Segura, 396 F.3d 1140, 1142-43 (10th Cir. 2005);
Fed. R. Crim. P. 52(a).
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There are two types of error under Booker: non-constitutional error and
constitutional error. United States v. Visinaiz, 428 F.3d 1300, 1315 (10th Cir.
2005). Non-constitutional error derives from the so-called remedial portion of
Booker, which severed the statutory provision requiring mandatory application of
the Guidelines in most cases. Booker, 543 U.S. at 258-59 (severing 18 U.S.C. §
3553(b)(1)). This severance has rendered the Guidelines advisory, although
sentencing courts must still consult the Guidelines and the factors of 18 U.S.C. §
3553(a). Id. at 264. Appellate courts will reverse a sentence if it is deemed
unreasonable. Id.; see also United States v. Sanders, --- F.3d ----, 2006 W L
1376962, at *3 (10th Cir. M ay 16, 2006) (explaining that a sentence may be
unreasonable based upon its length or the method in which it w as calculated).
Constitutional Booker error, on the other hand, occurs in the context of a
mandatory sentencing regime when a judge-found fact (other than the fact of a
prior conviction) increases a defendant’s sentence beyond the maximum
authorized by a jury verdict or a guilty plea through the court’s application of the
mandatory guidelines. Booker, 543 U.S. at 244.
In this case, because the district court did not consider the guidelines
m andatory, there w as no B ooker error, constitutional or non-constitutional. At
sentencing, the district court acknowledged the Guidelines, but exercised its
discretion and sentenced M r. Sagaste-Cruz to a life sentence. Therefore, because
the district court did not treat the Guidelines as mandatory, there can be no
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non-constitutional Booker error in M r. Sagaste-Cruz’ sentence. See Visinaiz, 428
F.3d at 1316. Booker is perfectly pellucid insofar as it does not prohibit the
district court from making factual findings and applying various adjustments to a
defendant as long as it did not view or apply the Guidelines as mandatory.
Booker, 543 U.S. at 233 (“If the Guidelines as currently written could be read as
merely advisory provisions that recommended, rather than required, the selection
of particular sentences in response to differing sets of facts, their use would not
implicate the Sixth Amendment.”). Of course, the district court must consider the
guidelines in fashioning a sentence. United States v. Kristl, 437 F.3d 1050, 1053
(10th Cir. 2006)
To the extent that M r. Sagaste-Cruz is arguing error in the district court’s
application of the Guidelines to include the two-level upward adjustment based on
his co-conspirator’s possession of a gun, we disagree. W e review a district
court’s legal application of the guidelines post-Booker de novo, and its supporting
findings of fact for clear error. Kristl, 437 F.3d at 1054. The district court
considered testimony from both the co-conspirator himself and law enforcement
officials, as well as the government’s proffer at sentencing. It is axiomatic that
the government bears the initial burden to prove possession of the weapon by a
preponderance of the evidence. See United States v. Smith, 131 F.3d 1392, 1400
(10th Cir. 1997). Yet it is likewise axiomatic that in a conspiracy case the
government need not prove that the defendant himself possessed the firearm. See
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id.Accordingly, the district court can attribute to a defendant the possession of
firearms by a co-conspirator if that possession was known or reasonably
foreseeable to that defendant. Id. Once the government meets this standard, it is
incumbent upon the defendant to show that it is “clearly improbable” that the
weapon was connected to the offense. United States v. Vaziri, 164 F.3d 556, 568
(10th Cir. 1999). W e conclude that while the government has more than met its
burden in this case, M r. Sagaste-Cruz has failed to show that it is “clearly
improbable” that M r. Gilliam’s possession of a handgun while traveling in his
vehicle with methamphetamine was connected to their ongoing conspiracy.
As an initial matter, it is true that M r. Gilliam indicated in his testimony
that he initially and primarily dealt with Julio. Nevertheless, his testimony also
quite starkly paints a picture revealing M r. Sagaste-Cruz as extensively involved
in the conspiracy as w ell, particularly insofar as M r. Gilliam unambiguously
testified that when Julio was away he dealt with M r. Sagaste-Cruz. Aplt. App. at
444. M r. Gilliam w as also forthcoming regarding his arrest for distributing
methamphetamine and admitted that his sentence reflected that he possessed a
firearm. Id. at 438. Furthermore, the government presented evidence of this
arrest by the arresting law enforcement officers. Id. 472-86. Lastly, the PSR
clearly reinforces M r. Gilliam’s admission here, because it provided the district
court with the information pertaining to his two-count conviction — one for
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conspiracy to possess with intent to distribute methamphetamine and the other for
carrying/use of a firearm in relation to a drug trafficking crime. Id. at 846.
Indeed, it hardly strains judicial credulity to think that M r. Sagaste-Cruz
knew or could foresee that M r. Gilliam was carrying a weapon. To the contrary,
it is quite common for drug dealers to carry weapons to protect their merchandise,
their cash receipts, and to intimidate potential purchasers. See United States v.
Becker, 230 F.3d 1224, 1231 (10th Cir. 2000); see also United States v.
Nicholson, 983 F.2d 983, 990 (10th Cir. 1993). As for M r. Sagaste-Cruz’
contention that there was never any explicit testimony by M r. Gilliam or the law
enforcement officers that M r. Gilliam possessed a firearm at the time of his arrest,
we are afraid that such an argument simply proves too much. As elaborated
above, there was more than ample evidence for the district court to apply this
enhancement, and we find no error in the district court’s decision to attribute the
possession of the gun to M r. Sagaste-Cruz.
W ith regard to the supervisor/leader upward adjustment, the district court
must find, by a preponderance of the evidence, that: (1) at least five persons were
involved or participated in the criminal venture; and (2) that the defendant either
exercised leadership control or supervision over at least one other participant, or
that the defendant functioned as an organizer of the criminal activity, even if he
did not directly supervise or control any specific subordinates. See United States
v. Cruz-Camacho, 137 F.3d 1220, 1224 (10th Cir. 1998); United States v. Valdez-
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Arieta, 127 F.3d 1267, 1270-72 (10th Cir. 1997). In order to qualify as a
supervisor or leader, M r. Sagaste-Cruz need only have supervised one subordinate
in the conspiracy. United States v. Apperson, 441 F.3d 1162, 1211 (10th Cir.
2006). The district court is also entitled to take into account all relevant conduct.
Once again, we find no error in the district court’s determination. The
government’s evidence clearly showed that M r. Sagaste-Cruz and his brother
Julio recruited, supervised, and led a multi-state methamphetamine trafficking
scheme over the course of several years. The government provided evidence that
there were at least ten other individuals involved in the conspiracy to distribute
methamphetamine, led by M r. Sagaste-Cruz and his brother, and the jury clearly
credited that testimony. Accordingly, we are satisfied that there was no error
(Booker or otherwise) in either the two-level enhancement for possession of a
weapon or the four-level enhancement for his supervisory and leadership role.
M r. Sagaste-Cruz also argues that the sentence was unreasonable under
Booker. He contends that the district court afforded the Guidelines “heavy
weight” and “in light of the two enhancements,” the result is unreasonable. A plt.
Br. at 22. W e have held a properly calculated sentence that is within the
Guidelines range is presumptively reasonable. Kristl, 437 F.3d at 1054. Here, as
noted above, the district court used the Guidelines as its starting point — not
mandatorily — apparently considered the factors in 18 U.S.C. § 3553(a), as it was
required to do, and arrived at a sentence within the Guideline range. As a result,
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we cannot say that M r. Sagaste-Cruz’ sentence was unreasonable.
B. Evidentiary Issues
M r. Sagaste-Cruz next argues that the district court erred in allowing
evidence concerning his prison record, street gangs, evidence of other unrelated
drug activity in the area where M r. Sagaste-Cruz was living, and evidence relating
to multiple conspiracies. The government contends that all of M r. Sagaste-Cruz’
arguments were adequately and properly addressed by the district court, and as
such, present no error.
As an initial matter, we note that M r. Sagaste-Cruz failed to raise all of
these arguments before the district court, and thus are review ed only for plain
error. Visinaiz, 428 F.3d at 1308. As such, M r. Sagaste-Cruz must demonstrate
that the district court committed (1) error, (2) that is plain, and (3) that the error
affects his substantial rights. Id. If this show ing is made, we may only exercise
discretion to correct the error if it “seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Id. (internal quotations omitted).
M r. Sagaste-Cruz first argues that the testimony of M s. Kucera improperly
mentioned that he had been in prison. His attorney promptly requested a
cautionary instruction from the district court, and the district court gave such an
instruction. W e reject the notion that such an instruction was insufficient, and
accordingly, we find no error on this point, plain or otherwise. Zafiro v. United
States, 506 U.S. 534, 540-41 (1993) (noting that “juries are presumed to follow
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their instructions”) (internal quotations omitted). M r. Sagaste-Cruz next argues
that the testimony of M s. Hillian improperly mentioned her other drug dealing
contacts, including a nation-wide street gang, the 18th Streeters. To the contrary,
M s. Hillian’s testimony on these points w as extremely brief, and we cannot say it
amounted to reversible error. Indeed, despite M r. Sagaste-Cruz’ arguments to the
contrary, our review indicates no attempt by the government to insinuate that M r.
Sagaste-Cruz was involved with these transactions, nor that the amounts of
methamphetamine used to determine M r. Sagaste-Cruz’ sentence incorporated any
of M s. Hillian’s dealings w ith the 18th Streeters. Rather, for these purposes, it is
quite clear that both the trial testimony and the PSR focus on M s. Hillian’s
dealings with M r. Sagaste-Cruz in 2003, years after her dealings with the street
gang. See Aplt. App. at 854-55. As such, we find no error here, plain or
otherwise.
M r. Sagaste-Cruz next argues that the district court improperly allowed
evidence that exceeded the scope of the single conspiracy in the indictment. The
government, for reasons quite beyond our ken, chose not to respond directly to
this contention. To prove a conspiracy to traffic in methamphetamine in violation
of 21 U.S.C. § 846, the government had to prove the following elements beyond a
reasonable doubt: (1) an agreement with another person to violate the law; (2)
knowledge of the essential objectives of the conspiracy; (3) knowing and
voluntary involvement; and (4) interdependence among the alleged
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coconspirators. United States v. M ontelongo, 420 F.3d 1169, 1173 (10th Cir.
2005). Though M r. Sagaste-Cruz repeatedly complains that he was tried based
upon the witnesses’ long history of drug dealing with persons he had no
connection with, the government more than sufficiently linked the defendant and
the various witnesses. It is well settled that in order to prove a conspiracy, the
government can elicit testimony from the witnesses about their customers and
associates. See United States v. Faulkner, 439 F.3d 1221, 1226 (10th Cir. 2006)
(noting that co-conspirator statements about historical events or individuals is
offered to prove the conspiracy existed, not that the actual events existed).
M r. Sagaste-Cruz argues that because the district court did not follow the
preferred order of proof regarding co-conspirator hearsay by electing to
conditionally admit that evidence subject to later connection, evidence concerning
multiple conspiracies, persons, and unrelated bad acts was admitted. Co-
conspirator statements are admissible as nonhearsay under Fed. R. Evid.
801(d)(2)(E). Before admitting such statements, the trial court must determine:
(1) a conspiracy existed; (2) the evidence shows the declarant and the defendant
were members of the conspiracy; and (3) the statements were made during the
course of and in furtherance of the conspiracy. United States v. Sinclair, 109
F.3d 1527, 1533 (10th Cir. 1997).
The preferred order of proof requires the government to introduce evidence
of the conspiracy before the admission of co-conspirator statements, but
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alternatively, the district court has discretion to admit such testimony
conditionally — subject to its connection by independent evidence. Id. at 1533-
34. The district court chose this latter route and made its ruling after the close of
the evidence, as M r. Sagaste-Cruz did not put on any evidence. Aplt. App. at
685-86. To that end, the district court referenced its notes concerning the
testimony of Patricio Pena and Kristy Kucera. Id. at 687-88. Patricio Pena
testified that Julio informed him that M r. Sagaste-Cruz would one day be taking
over the business and that M r. Sagaste-Cruz provided M r. Pena with two ounces
of methamphetamine and picked up a car in payment of a drug debt. See id. at
337, 346-347, 356-58. Kristy Kucera testified that Julio told her that M r.
Sagaste-Cruz did not care for her because as a drug user, she was bad for
business. Id. at 424-25.
The testimony of the various witnesses summarized at the outset
established a conspiracy to distribute methamphetamine at trial and M r. Sagaste-
Cruz’s participation in it. The hearsay statements were in furtherance of the
conspiracy, and as such, the district court did not abuse its discretion in admitting
the hearsay evidence. The Sagaste-Cruz brothers w ere clearly operating to
distribute methamphetamine together, and we conclude that the government more
than adequately proved up the underlying conspiracy as w ell as its participants
with ample evidence independent of the statements themselves. See Bourjaily v.
United States, 483 U.S. 171, 181 (1987); see also United States v. Lopez-
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Gutierrez, 83 F.3d 1235, 1242 (10th Cir. 1996). Accordingly, we find no error
here, plain or otherwise.
C. Enhancement Information
M r. Sagaste-Cruz also argues that the government failed to timely file and
serve an enhancement information pursuant to 21 U.S.C. § 851, arguing that this
would be a jurisdictional defect. The enhancement was based on M r. Sagaste-
Cruz’ 1996 South Dakota felony drug possession conviction. The government
disputes this argument, pointing out that the information was filed approximately
three months prior to commencement of the trial. See Aplt. A pp. at 38-40.
As an initial matter, we recently held that timely filing and service of the
information enhancement is not jurisdictional. United States v. Flowers, 441 F.3d
900, 903 (10th Cir. 2006). M r. Sagaste-Cruz argues that he was only personally
served with a Spanish-language version of the information. Unfortunately for M r.
Sagaste-Cruz, however, under § 851(a) the government may serve either the
defendant or his attorney. The government clearly met the statutory requirements
by serving both M r. Sagaste-Cruz and his lawyer. See Aplt. App. at 1, 38-39. 2
2
M r. Sagaste-Cruz also appears to argue that he was not “properly arraigned
at the commencement of the jury trial.” Aplt. Br. at 36. This argument is, quite
frankly, confounding. Nowhere in the statutory language of § 851 resides an
arraignment requirement. To the contrary, all that is required is that the district
court, at some point between conviction and the entry of the sentence, must
inquire of the defendant whether he affirms or denies the prior conviction. This
clearly occurred here. Aplt. App. at 789.
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D. Ineffective Assistance of Counsel
M r. Sagaste-Cruz argues that his trial counsel was ineffective, and that as
the record has been sufficiently developed on this issue regarding many instances
of ineffectiveness, this court should reach the merits. The government counters,
arguing that an insufficient record has been established for review. W e have
repeatedly stated that absent extraordinary situations, we will not entertain an
ineffective assistance of counsel claim on direct review. United States v.
Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). W e adhere to that
general rule here as w ell, because there is simply an insufficient record to
determine the merits of this contention, and we think it preferable that the district
court consider the claim first. Id.E. Jury Selection
M r. Sagaste-Cruz’ last contention is that he was denied a fair trial by virtue
of the manner in which the jury selection process was carried out. Specifically,
he argues that the district court’s questioning of the venire panel on the subject of
methamphetamine created “bias and prejudice.” Aplt. Br. at 46. M r. Sagaste-
Cruz also argues that Hispanics were under represented on the jury panel. The
government, once again, summarily dismisses the merit of these arguments.
W e note again that as M r. Sagaste-Cruz raises these issues for the first time
on appeal, we review for plain error. Visinaiz, 428 F.3d at 1308. W ith regard to
the district court’s questioning of the jury panel on the subject of drug use, our
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review of the record clearly shows that these questions were asked so as to ensure
that the potential jury members were not prejudiced given the subject matter of
the trial, i.e., the distribution of methamphetamine. See Aplt. App. at 151 (noting
that the questions regarding family members use of drugs w ould be “fairly
touchy”); id. at 152-53 (repeatedly asking the venire members if their past
experience, whether direct or indirect, would “influence [their] ability to listen to
the evidence . . . and to consider both sides of [the] case?”). W e reject the notion
that the district court was required, sua sponte, to consider the answers in camera,
or to limit the responses of the venire. As such, we conclude that M r. Sagaste-
Cruz has failed to show error, plain or otherwise.
W ith regard to the jury composition argument, we are unpersuaded. W hile
M r. Sagaste-Cruz does cite Duren v. M issouri, 439 U.S. 357 (1979), for the
proposition that a jury venire with a makeup averaging less than 15% women
violates the Constitution’s fair-cross-section requirement, his only cognizable
argument is that the actual jury panel contained “no persons w ith Hispanic
surnames.” Aplt. Br. at 49. M r. Sagaste-Cruz fails to elaborate on this argument
any further other than to point out that persons of Hispanic or Latino origin
constitute 6.4% of W yoming’s population. W e do not consider arguments not
properly developed in the briefs. Phillips v. Calhoun, 956 F.2d 949, 953-54 (10th
Cir. 1992); Fed. R. App. P. 28(a)(9).
In closing, we note that this case illustrates counsel’s need for
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conscientious and careful review of written legal materials prior to submission to
this court. W hile M r. Sagaste-Cruz’ brief contained numerous logical leaps and
specious contentions, we are dismayed by the cold reality that the government’s
brief was hardly better. In particular, while the government labels M r. Sagaste-
Cruz’ three evidentiary arguments – including those involving the preferred order
of proof and the existence of single versus multiple conspiracies – as “confusing,
incoherent, and conclusory in nature,” see Aplee. Br. at 29, we are sincerely
troubled by the government’s “effort” to rebut M r. Sagaste-Cruz’ arguments on
these issues.
Indeed, counter to the demands of Fed. R. App. P. 28(b), the government
addresses these three arguments in approximately one page of its brief, and
dismisses all three, with nary a citation to relevant legal authority and with
absolutely no argument, concluding with the summary contention that these
“claims fail because he fails to show any error at all.” Aplee. Br. at 29. A brief
that employs summary dismissals, a severe paucity of authority, and such a
blatant refusal to respond to argument not only consumes more time, but also may
be somewhat less than persuasive. 3 W e hope that counsel grasps this problem as
3
W e further note that while restyling the order of the appellant’s arguments
in an appellee’s brief is sometimes useful, that brief still must fully and
adequately address all of the arguments raised by the appellant. Failure to do so
ignores basic rules of appellate advocacy.
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well as its concomitant responsibility to correct it.
A FFIR ME D.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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