United States v. Albert Saucedo, Jr. , 489 F. App'x 390 ( 2012 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-15462
Non-Argument Calendar
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D.C. Docket No. 2:11-cr-00011-WCO-SSC-2
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,
versus
ALBERTO SAUCEDO, JR.,
llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(September 11, 2012)
Before DUBINA, Chief Judge, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
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Appellant Alberto Saucedo appeals his convictions and 360-month total
sentence for conspiracy to possess with intent to distribute methamphetamine, in
violation of 21 U.S.C. § 846, and possession with intent to distribute
methamphetamine, in violation of 21 U.S.C. § 841(a). On appeal, Saucedo argues
that the district court erred in admitting evidence seized from his cell phone
pursuant to a search warrant because, while the initial seizure of his phone was
lawful, there was an unreasonable delay in securing the search warrant for the
phone. He further contends that his trial counsel was ineffective due to the failure
to file a motion to suppress the evidence of his cell phone records. Saucedo also
challenges his sentence, arguing that it is both procedurally and substantively
unreasonable because the district court did not properly consider the 18 U.S.C.
§ 3553 factors and imposed an excessive sentence.
After reviewing the record and reading the parties’ briefs, we affirm.
I.
Federal Rule of Criminal Procedure 12(b) provides that a motion to
suppress evidence must be made before trial. Fed.R.Crim.P. 12(b)(3)(C). Rule
12(e) further provides that “[a] party waives any Rule 12(b)(3) defense, objection,
or request not raised by the deadline the court sets under Rule 12(c) or by any
extension the court provides.” Fed.R.Crim.P. 12(e). However, “[f]or good cause,
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the court may grant relief from the waiver.” Id. Thus, we have stated that a
“failure to present a suppression motion prior to trial constitutes waiver unless the
district court grants relief for good cause shown.” United States v. Ford, 34 F.3d
992, 994 n.2 (11th Cir. 1994). Although the district court may grant relief from the
waiver for good cause shown, we have declined to address the element of “good
cause” when the defendant did not request relief from the waiver. See
Fed.R.Crim.P. 12(e); United States v. Suescun, 237 F.3d 1284, 1287 n. 7 (11th Cir.
2001).
We conclude from the record that Saucedo waived his argument regarding
the admissibility of his cell phone records because he failed to file a pre-trial
motion to suppress the evidence, as required by Rule 12(b)(3)(c). Furthermore, he
never asked the district court or this court to relieve him from the waiver, and he
has not provided any explanation for why he failed to file a motion to suppress the
evidence from his cell phone. Accordingly, we affirm this issue.
II.
Where appropriate, we review claims for ineffective assistance of counsel
de novo as mixed questions of law and fact. Caderno v. United States, 256 F.3d
1213, 1216-17 (11th Cir. 2001). In Massaro v. United States, 538 U.S. 500, 509,
123 S. Ct. 1690, 1696, 155 L. Ed. 2d 714 (2003), the Supreme Court concluded
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that failure to raise ineffective-assistance-of-counsel claims on direct appeal does
not bar such claims from being raised for the first time in a collateral attack. In
arriving at this conclusion, the Supreme Court held that, in most cases, the record
is inadequate to raise an ineffective-assistance claim on direct appeal because the
trial evidence is devoted to guilt-or-innocence issues, as opposed to the reasoning
behind counsel’s actions. Id. at 504-05, 123 S. Ct. at 1694. By contrast, it held
that the district court, on collateral review, can handle such claims more
efficiently. Id. at 506-07, 123 S. Ct. at 1695. It observed that the district court is
“the forum best suited to developing the facts necessary to determining the
adequacy of representation during an entire trial,” in part because it provides an
opportunity to obtain testimony from the attorney alleged to have rendered
ineffective assistance. Id. at 505-06, 123 S. Ct. at 1694.
As such, as a general matter, “an ineffective assistance of counsel claim is
properly raised in a collateral attack on the conviction under 28 U.S.C. § 2255,” as
opposed to direct appeal. United States v. Merrill, 513 F.3d 1293, 1308 (11th Cir.
2008) (internal quotation marks and alteration omitted). This rule
notwithstanding, the Supreme Court and this court have recognized that there may
be cases “in which trial counsel’s ineffectiveness is so apparent from the record”
that the issue may be considered on direct appeal. Massaro, 538 U.S. at 508, 123
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S. Ct. at 1696.
We decline to consider Saucedo’s ineffective assistance challenge on direct
appeal. Rather, this claim should be presented in a collateral attack on the
conviction under § 2255, where the district court could better develop a full
record.
III.
We review the reasonableness of a sentence under a deferential abuse-of-
discretion standard of review. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct.
586, 591, 169 L. Ed. 2d 445 (2007). In reviewing the reasonableness of a sentence,
we must first ensure that the sentence was procedurally reasonable, meaning that
the district court properly calculated the guideline range, treated the guidelines as
advisory, considered the 18 U.S.C. § 3553(a) factors, did not select a sentence
based on clearly erroneous facts, and adequately explained the chosen sentence.
Id. at 51, 128 S. Ct. at 597. Once we determine that a sentence is procedurally
reasonable, we must examine whether the sentence was substantively reasonable
under the totality of the circumstances. Id. A sentence may be remanded if we are
left with a “definite and firm conviction that the district court committed a clear
error of judgment in weighing the § 3553(a) factors by arriving at a sentence that
lies outside the range of reasonable sentences dictated by the facts of the case.”
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United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008) (internal quotation
marks omitted).
The district court must impose a sentence that is “sufficient, but not greater
than necessary to comply with the purposes” listed in § 3553(a)(2), including the
need to reflect the seriousness of the offense, promote respect for the law, provide
just punishment for the offense, deter criminal conduct, and protect the public
from the defendant’s future criminal conduct. See 18 U.S.C. § 3553(a)(2). The
district court must also consider the nature and circumstances of the offense, the
history and characteristics of the defendant, the kinds of sentences available, the
applicable guideline range, the pertinent policy statements issued by the
Sentencing Commission, the need to avoid unwarranted sentence disparities, and
the need to provide restitution to victims. Id. § 3553(a)(1), (3)-(7).
The party who challenges the sentence bears the burden to show it is
unreasonable in light of the record and the § 3553(a) factors. United States v.
Tome, 611 F.3d 1371, 1378 (11th Cir. 2010), cert. denied, 131 S. Ct. 674 (2010).
Although we do not automatically presume a sentence falling within the guideline
range to be reasonable, we ordinarily expect such a sentence to be reasonable.
United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). A sentence imposed
well below the statutory maximum penalty is an indicator of a reasonable
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sentence. See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).
We conclude from the record that the district court adequately considered
Saucedo’s arguments and the § 3553(a) factors, did not select a sentence based on
clearly erroneous facts, and adequately explained the chosen sentence. In addition,
we conclude that Saucedo’s 360-month sentence was substantively reasonable
under the totality of the circumstances and in light of the § 3553(a) factors.
For the aforementioned reasons, we affirm Saucedo’s conviction and his
total sentence of 360 months.
AFFIRMED.
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