United States v. Garcia-Emanuel ( 1998 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 30 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-5067
(D.C. No. 90-CR-92-B)
MARIO R. GARCIA-EMANUEL, (N.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before SEYMOUR, Chief Judge, BRORBY, and BRISCOE, 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. Therefore, the case is ordered
submitted without oral argument.
Defendant Mario Garcia-Emanuel appeals the district court’s partial denial of his
motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Counsel for
defendant has determined the appeal is frivolous and has filed a motion to withdraw and
*
This order and judgment is not binding precedent, except under the doctrines of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.
an Anders brief outlining defendant’s arguments. See Anders v. California, 386 U.S. 738,
744 (1967). Anders instructs that such a brief must refer to “anything in the record that
might arguably support the appeal.” Id. Consistent with this requirement, counsel has
identified two arguments: (1) During resentencing, the district court erred in imposing a
four-point enhancement under U.S.S.G. § 3B1.1; and (2) during resentencing, the court
erred in calculating the drug quantity to be used in determining defendant’s sentence.
Defendant was furnished a copy of the Anders brief to allow him “to raise any
points that he chooses.” Id. In his pro se brief, defendant acknowledges the § 3B1.1
argument is frivolous, but outlines two additional arguments he wishes to assert on
appeal. Specifically, he contends his counsel on direct appeal failed to properly challenge
the sufficiency of the evidence underlying his continuing criminal enterprise conviction,
and that the district court erred at resentencing by incorrectly concluding it lacked
authority to depart below the statutory mandatory minimum sentence.
We conclude all of defendant’s claims are without merit. We grant counsel’s
motion to withdraw and affirm the partial denial of defendant’s § 2255 motion.
I.
Defendant was convicted on April 1, 1991, of one count of conspiracy to possess
with intent to distribute and to distribute cocaine, one count of continuing criminal
enterprise (CCE), five counts of income tax evasion, one count of conspiracy to launder
money, and seventeen counts of money laundering. The district court denied defendant’s
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motion for judgment of acquittal on the conspiracy and CCE counts, but granted it as to
the seventeen money laundering counts and the money laundering conspiracy count. Both
the defendant and the government appealed. This court affirmed the conspiracy and CCE
convictions, reinstated five of the money laundering counts, and reinstated the money
laundering conspiracy count. United States v. Garcia-Emanuel, 14 F.3d 1469, 1472-79
(10th Cir. 1994). On remand, the district court resentenced defendant to a total term of
292 months’ imprisonment and five years’ supervised release. Defendant did not appeal
the resentencing.
Approximately two years after resentencing, defendant filed his § 2255 motion to
vacate, set aside, or correct sentence. Defendant asserted his counsel on direct appeal was
ineffective for failing to adequately challenge the CCE conviction and for failing to argue
the conspiracy conviction should be vacated as a lesser included offense in the CCE
conviction, and asserted his counsel at resentencing was ineffective for failing to
challenge various portions of the presentence report. The district court rejected
defendant’s argument that counsel was ineffective in challenging the CCE conviction, but
agreed counsel was ineffective in failing to challenge on the lesser-included issue. The
court vacated defendant’s conspiracy conviction and resentenced him to a total term of
240 months’ imprisonment, which is the statutory mandatory minimum sentence for
persons convicted of engaging in a CCE. 21 U.S.C. § 848(a). Defendant was granted
leave to proceed on appeal in forma pauperis.
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II.
In reviewing the arguments raised by defendant, we apply a de novo standard to
the district court’s legal rulings and a clearly erroneous standard to its findings of fact.
United States v. Cox, 83 F.3d 336, 338 (10th Cir. 1996).
Ineffective assistance of counsel on direct appeal
To prevail on this claim, defendant must demonstrate (1) counsel’s performance
was constitutionally deficient, i.e., it fell below an objective standard of reasonableness,
Strickland v. Washington, 466 U.S. 668, 688 (1984), and (2) there is a reasonable
probability that, but for counsel’s errors, the outcome of the proceedings would have been
different, Kimmelman v. Morrison, 477 U.S. 365, 375 (1986); Williamson v. Ward, 110
F.3d 1508, 1514 (10th Cir. 1997). Because defendant has alleged his counsel failed to
adequately raise an issue on appeal, we examine the merits of the issue. See United
States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995). If the issue is without merit, there is
likewise no merit to defendant’s ineffective assistance claim. Id. at 392-93.
In the direct appeal, defendant’s counsel challenged the sufficiency of the evidence
to support the CCE conviction. Characterizing the challenge as “perfunctory,” this court
concluded the evidence was “overwhelming” and specifically noted “the evidence,
viewed in the light most favorable to the government, supported the jury’s finding that
Defendant was the organizer, supervisor, or manager of eight other individuals.” 14 F.3d
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at 1472.
Defendant now contends counsel should have done a better job of raising the issue
and, specifically, should have “appropriately briefed the issue and made sufficient
references to the record to support his argument.” Defendant’s pro se br. at 7. Defendant
argues if counsel had done so, this court “would not have been able to conclude” there
was sufficient evidence to support the CCE conviction. Id.We conclude defendant’s arguments are without merit. Even if counsel had done
everything defendant claims he should have done, we are convinced the CCE conviction
would have been affirmed. As noted, this court reviewed the record on appeal and
concluded the evidence supporting defendant’s CCE conviction was “overwhelming.” 14
F.3d at 1472. Additional arguments or references by counsel simply would not have
changed this conclusion.
District court’s authority to depart below statutory minimum sentence
Defendant argues the district court erred during resentencing in concluding it
lacked authority to depart below the twenty-year statutory minimum sentence. In United
States v. Campbell, 995 F.2d 173, 175 (10th Cir. 1993), we held a district court may
depart below the statutory minimum sentence established by Congress “only to reflect
substantial assistance by the defendant.” Because this narrow exception has no
application to this case, the district court correctly concluded there was no basis for
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departure.
District court’s calculation of drug quantity for sentencing purposes
Defendant contends the district court erred in calculating the amount of drugs
attributable to him for sentencing purposes. Although the presentence report estimates
defendant distributed “a minimum of 60 kilograms of cocaine” during the course of the
CCE, that estimate was not used in determining defendant’s sentence. Accordingly, any
error in the estimated amount is irrelevant.
III.
The judgment of the district court is AFFIRMED. Counsel’s motion to withdraw
is GRANTED. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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