United States v. Sanchez ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 8 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 96-2153
v. (D.C. No. CIV-95-1299-LH)
(D. N.M.)
RUBEN GREGORY SANCHEZ,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRORBY, EBEL and KELLY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
We hereby withdraw the order and judgment filed in this case on July 11,
1997.
This order and judgment is not binding precedent except under the
*
doctrines of law of the case, res judicata and collateral estoppel. The 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.
On June 28, 1993, Mr. Ruben G. Sanchez pled guilty to unlawfully,
knowingly, and intentionally manufacturing more than one kilogram of a mixture
containing a detectable amount of methamphetamine in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(A) (1994), and to unlawfully and knowingly maintaining a
place for the purpose of unlawfully manufacturing, storing, distributing, and using
a methamphetamine mixture in violation of 21 U.S.C. § 856 (1994). Under the
plea agreement entered into pursuant to Fed. R. Crim. P. 11(e)(1)(C), Mr. Sanchez
and the government agreed to a sentence of ten years imprisonment. See Fed. R.
Crim. P. 11(e)(1)(C) (in a plea agreement, the government and the defendant may
"agree that a specific sentence is the appropriate disposition of the case"). On
September 10, 1993, the district court sentenced him to 120 months imprisonment
and five years of supervised release pursuant to the plea agreement.
On October 27, 1995, Mr. Sanchez filed a motion under 28 U.S.C. § 2255to vacate, set aside or correct his sentence. Mr. Sanchez alleged his counsel was
ineffective for failing to challenge the quantity of methamphetamine used by the
district court in calculating his sentence and for failing to raise the relevant facts
entitling him to a downward departure for diminished capacity, acceptance of
responsibility, and aberrant behavior.
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On March 11, 1996, the magistrate judge issued his Findings and
Recommended Disposition recommending Mr. Sanchez's motion be denied. The
magistrate judge found the government case was strong; if convicted at trial, Mr.
Sanchez faced a possible sentence of 151-188 months imprisonment; faced with
this possibility, Mr. Sanchez's counsel and the government entered into a plea
agreement with a stipulated sentence of ten years (120 months) imprisonment; the
district court sentenced Mr. Sanchez to the stipulated amount of time; and any
argument by Mr. Sanchez's counsel to depart downward from the agreed upon
sentence would have been a breach of the plea agreement. The magistrate judge
concluded Mr. Sanchez's counsel's performance did not fall below an objective
standard of reasonableness nor was there a reasonable probability that, but for
counsel's alleged errors, Mr. Sanchez would have proceeded to trial rather than
plead guilty. After de novo review, the district court adopted the magistrate
judge's recommendation, denied Mr. Sanchez's § 2255 motion, and dismissed the
action with prejudice.
On appeal, Mr. Sanchez, appearing pro se, challenges the district court's
denial of his § 2255 motion. Mr. Sanchez reiterates his contention his counsel
was ineffective for failing to challenge the quantity of methamphetamine used to
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calculate his sentence. 1 When reviewing the denial of a § 2255 motion, we
review the district court's legal conclusions de novo and its findings of fact for
clear error. United States v. Cox, 83 F.3d 336, 338 (10th Cir. 1996). "A claim of
ineffective assistance of counsel presents a mixed question of law and fact which
we review de novo." Brewer v. Reynolds, 51 F.3d 1519, 1523 (10th Cir. 1995),
cert. denied, 116 S. Ct. 936 (1996).
After a de novo review of the record, we hold the district court did not err
in its findings of facts nor in its application of the law. Therefore, we affirm the
district court's dismissal of Mr. Sanchez's § 2255 motion for substantially the
reasons set forth in the magistrate judge's Findings and Recommended Disposition
of March 11, 1996, and the district court's Order of April 18, 1996, copies thereof
being attached.
1
For the first time on appeal, Mr. Sanchez challenges the type of
methamphetamine used to calculate his sentence. However on appeal, we do not
consider issues not raised or abandoned in the district court absent unusual
circumstances not present in this case. In re Walker (Walker v. Mather), 959 F.2d
894, 896 (10th Cir. 1992).
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The appeal is AFFIRMED. 2
Entered for the Court
WADE BRORBY
United States Circuit Judge
2
Due to the Supreme Court's recent decision in Lindh v. Murphy, 117
S. Ct. 2159 (1997), the Anti-Terrorism and Effective Death Penalty Act of 1996
does not apply to cases such as this, that were pending on the effective date of the
Act, April 24, 1996. Therefore, Mr. Sanchez is not required to obtain a certificate
of appealability in order for us to reach the merits of his appeal.
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