United States v. Perez , 45 F. App'x 840 ( 2002 )


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  •                                                                         F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    AUG 26 2002
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    No. 02-2023
    v.                                               (D.C. No. CR-00-931-JP)
    (D. New Mexico)
    AARON R. PEREZ,
    Defendant - Appellant.
    ORDER AND JUDGMENT *
    Before KELLY, McKAY, and MURPHY, 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)(2); 10th Cir. R. 34.1(G). This 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    This order and judgment is not binding precedent, except under the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. 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.
    I. INTRODUCTION
    Aaron 1 R. Perez was convicted of one count of distributing more than five
    grams of cocaine base, in violation of 
    21 U.S.C. § 841
    (a)(1), (b)(1)(B), and
    sentenced to 121 months’ incarceration. He appeals his conviction and sentence.
    We have jurisdiction pursuant to 
    28 U.S.C. § 1291
     and 
    18 U.S.C. § 3742
    (a) and
    affirm and dismiss in part.
    II. FACTS
    During the month of December, 1999, Detective Jay Rayjee of the
    Albuquerque Police Department conducted an undercover narcotics investigation
    of Marcos Acosta. The goal of the investigation was to discover Acosta’s
    supplier of cocaine base (“crack”). Posing as an individual interested in
    purchasing large amounts of crack for resale, Rayjee spoke over the telephone
    with Acosta on December 29 and 30 and expressed his interest in buying three
    ounces of crack. On the afternoon of December 30, Rayjee drove to Acosta’s
    house. Acosta got into Rayjee’s car and told him to drive to a nearby payphone.
    After making a call, Acosta directed Rayjee to drive to a “ditch bank.” Upon
    arriving at the ditch bank, Rayjee and Acosta settled on a price of $935 for an
    1
    Defendant’s counsel on appeal spells the defendant’s first name “Arron.”
    The record, however, is replete with the alternative spelling “Aaron.” We will
    likewise use the spelling “Aaron.”
    -2-
    ounce and a half of crack. 2 Rayjee then heard a honk and saw a green Pontiac
    parked behind his car. Perez was standing beside the car. Acosta walked to
    Perez, who handed Acosta a plastic bag containing a yellow substance weighing
    roughly an ounce and a half. The substance was later identified as crack. Acosta
    walked back to Rayjee’s car; Rayjee weighed the crack and gave the money to
    Acosta. Rayjee then gave an arrest signal, and numerous police officers
    descended on the ditch bank. They arrested Perez and Acosta.
    III. DISCUSSION
    A. Ineffective Assistance of Counsel
    Perez argues that his trial counsel’s representation was constitutionally
    deficient because he failed to interview and call to testify the brothers of Marcos
    Acosta. According to Perez, the brothers could verify the defense theory of the
    case that the calls from the Acosta home to Perez’s telephone on December 30
    were not calls made by Marcos to set up illegal drug deals, but calls by Marcos’
    brother to make New Year’s Eve plans.
    “Ineffective assistance of counsel claims should be brought in collateral
    proceedings, not on direct appeal. Such claims brought on direct appeal are
    presumptively dismissible, and virtually all will be dismissed.” United States v.
    Galloway, 
    56 F.3d 1239
    , 1240 (10th Cir. 1995) (en banc). Only in the rarest of
    2
    One ounce is approximately 28.35 grams.
    -3-
    circumstances, when an ineffective assistance claim needs no further factual
    development, will we consider such a claim on direct appeal. See 
    id. at 1240-41
    .
    This case does not present such a rare circumstance. As we indicated in Beaulieu
    v. United States, a failure to interview witnesses claim is often fact-dependent.
    See 
    930 F.2d 805
    , 808 (10th Cir. 1991), overruled on other grounds, Galloway,
    
    56 F.3d at 1241
    . In this case, for instance, to determine the adequacy of trial
    counsel’s representation, such facts as whether counsel attempted to interview
    Acosta’s brothers and, if not, his reasons for not doing so must be known. The
    record sheds no light on these questions, and, accordingly, we will not address the
    claim.
    B. Sufficiency of the Evidence
    In reviewing a challenge to the sufficiency of the evidence supporting the
    conviction, we view all evidence in the light most favorable to the government.
    See United States v. Edwards, 
    69 F.3d 419
    , 430 (10th Cir. 1995). We will uphold
    the verdict if any reasonable jury could find the defendant guilty beyond a
    reasonable doubt. See 
    id.
    Perez argues that he was just an innocent bystander to the drug transaction.
    He contends that telephone records introduced by the government indicate only
    that calls to his phone were made by someone at the Acosta residence, not
    necessarily by Marcos Acosta. Even ignoring all evidence relating to telephone
    -4-
    calls made to Perez’s telephone from Acosta’s home, however, the evidence was
    more than sufficient to convict. The jury was presented with testimony that Perez
    met Acosta and Rayjee at the ditch bank, that Perez handed Acosta a bag
    containing crack, that Acosta gave Rayjee the bag in exchange for over nine
    hundred dollars, that when police arrived Perez fled, and that cocaine residue and
    plastic baggies were found at Perez’s home. From these facts, a reasonable jury
    could infer that Perez knowingly distributed crack.
    C. Obstruction of Justice Enhancement
    The district court enhanced Perez’s offense level by two points under
    U.S.S.G. § 3C1.1, which provides
    If (A) the defendant willfully obstructed or impeded, or attempted to
    obstruct or impede the administration of justice during the course of
    the investigation, prosecution, or sentencing of the instant offense of
    conviction, and (B) the obstructive conduct related to (i) the
    defendant’s offense of conviction and any relevant conduct; or (ii) a
    closely related offense, increase the offense level by 2 levels.
    The district court found that
    [b]ased on the trial testimony given, I think that the Probation Office
    has correctly ascertained that the trial testimony given by the
    defendant falls withing Section 3C1.1 of the guidelines and that he
    did willfully attempt to obstruct or impede the administration of
    justice during the prosecution of the case by giving false testimony,
    one, denying his involvement in the drug transactions, and second,
    denying that he participated in the phone conversation that was a
    critical element leading up to a drug transaction.
    -5-
    Perez contends the district court erroneously relied on the guilty verdict to
    determine that Perez gave false testimony. He also contends that there is
    insufficient evidence that Perez lied on the stand.
    We review the district court’s factual findings for clear error. See United
    States v. Mounkes, 
    204 F.3d 1024
    , 1029 (10th Cir. 2000). When the district court
    observes the defendant’s testimony, we give deference in reviewing its finding of
    perjury. See 
    id.
     There is no merit to Perez’s contention that the district court
    relied only on the jury verdict. The court expressly relied on “the trial testimony
    given.” Moreover, the district court’s factual finding that Perez falsely testified
    that he had no part in the drug transaction is not clearly erroneous. Detective
    Rayjee testified that Perez met Rayjee and Acosta at the ditch bank and gave
    Acosta a bag containing crack. The district court observed Perez’s testimony and
    we defer to its determination that Perez falsely testified when he stated he was not
    involved in the drug transaction.
    IV. CONCLUSION
    Perez’s conviction and sentence is AFFIRMED. Perez’s claim of
    ineffective assistance of trial counsel is DISMISSED WITHOUT PREJUDICE.
    ENTERED FOR THE COURT
    Michael R. Murphy
    Circuit Judge
    -6-
    

Document Info

Docket Number: 02-2023

Citation Numbers: 45 F. App'x 840

Judges: Kelly, McKAY, Murphy

Filed Date: 8/26/2002

Precedential Status: Non-Precedential

Modified Date: 8/3/2023