Guillermo Sanchez-Salazar v. United States , 470 F. App'x 840 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-14024 ELEVENTH CIRCUIT
MAY 2, 2012
Non-Argument Calender
JOHN LEY
________________________
CLERK
D.C. Docket Nos. 1:10-cv-21379-MGC; 1:06-cr-20226-MGC-3
GUILLERMO SANCHEZ-SALAZAR,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Respondent - Appellee.
__________________________
Appeal from the United States District Court
for the Southern District of Florida.
___________________________
(May 2, 2012)
Before TJOFLAT, CARNES, and KRAVITCH, Circuit Judges.
PER CURIAM:
Guillermo Sanchez-Salazar, a federal prisoner acting pro se, filed a 28
U.S.C. § 2255 motion to vacate, set aside, or correct his 292-month prison
sentence. The district court denied that motion, and Sanchez-Salazar has
appealed, contending that his trial lawyer rendered ineffective assistance.
I.
Sanchez-Salazar was the first mate aboard a Panamanian-flagged vessel
when it was “stopped by the United States Coast Guard on the high seas off the
coast of Honduras.” United States v. Aguilar, 286 F. App’x 716, 718 (11th Cir.
2008) (unpublished). The Coast Guard boarded the vessel and found 2,442
kilograms of cocaine. Id. Sanchez-Salazar was arrested, and a grand jury charged
him with conspiracy to possess and possession of cocaine with intent to distribute
while aboard a vessel subject to United States jurisdiction in violation of the
Maritime Drug Law Enforcement Act, 46 U.S.C. app. §§ 1901–1904 (2006).1
Aguilar, 286 F. App’x at 717–18. A jury found him guilty.
The presentence investigation report recommended a total offense level of
40, which included a 2-level increase because Sanchez-Salazar was the first mate
1
Six months after Sanchez-Salazar was indicted, Congress recodified the MDLEA, which
is now found at 46 U.S.C. §§ 70501–70507. See Act of Oct. 6, 2006, Pub. L. No. 109-304, §
10(2), 120 Stat. 1485, 1658–89. In this opinion, we cite to the pre-recodification version of the
MDLEA.
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of the cocaine-carrying vessel. See United States Sentencing Guidelines §
2D1.1(b)(2)(B) (2006). Combined with his criminal history category of I, his
guidelines range was 292 to 365 months in prison. The district court adopted the
PSR and sentenced him to 292 months in prison. Id. at 719–20. We affirmed
Sanchez-Salazar’s convictions and sentence on direct appeal. Id. at 725.
Sanchez-Salazar then filed a 28 U.S.C. § 2255 motion, raising, among other
things, two ineffective assistance of counsel claims. He asserted (1) that his trial
lawyer should have argued that the Coast Guard’s seizure of his vessel and his
arrest violated the 1988 United Nations Convention Against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances, and (2) that his lawyer should have
objected to the 2-level first-mate increase on the ground that it created an
unwarranted sentence disparity between him and the vessel’s chief engineer. The
district court denied Sanchez-Salazar’s motion, and he appealed.
II.
When reviewing a district court’s denial of a § 2255 motion, we review for
clear error the court’s findings of fact and review de novo its application of the
law to those facts. Rhode v. United States, 583 F.3d 1289, 1290 (11th Cir. 2009).
To prevail on his ineffective assistance of counsel claims, Sanchez-Salazar must
show that (1) his lawyer’s performance was deficient and (2) the deficiency
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prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,
2064 (1984). To show that his lawyer’s performance was deficient, he must show
that the representation fell below “an objective standard of reasonableness . . .
under prevailing professional norms.” Id. at 688, 104 S.Ct. at 2064. To show
prejudice, he “must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694, 104 S.Ct. at 2068.
Sanchez-Salazar contends that his lawyer was unconstitutionally ineffective
by not arguing that the Coast Guard’s search of his vessel and his arrest violated
the U.N. Convention. The MDLEA, though, provides that a person charged with
violating that statute “does not have standing to raise a claim of failure to comply
with international law as a basis for a defense.” 46 U.S.C. app. § 1903(d); see
United States v. Matos-Luchi, 627 F.3d 1, 6 (1st Cir. 2010) (“The defendants are
not entitled to raise a violation of international law as an objection [to prosecution
under the MDLEA] . . . .” (citation omitted)). So Sanchez-Salazar cannot establish
that his lawyer’s alleged deficiency was prejudicial.
Sanchez-Salazar also contends that his lawyer was unconstitutionally
ineffective by not objecting to the 2-level first-mate increase he received under
U.S.S.G. § 2D1.1(b)(2)(B) on the ground that the increase created an unwarranted
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sentence disparity between him and the vessel’s chief engineer, who did not
receive the same increase. He, however, cannot show that the lawyer’s failure to
object on that ground was deficient under Strickland. At sentencing and on direct
appeal, his lawyer argued that the first-mate increase was improper because the
cocaine was being imported to Belize and not to the United States, but we—and
the district court—rejected that argument. Aguilar, 286 F. App’x at 723–24.
Sanchez-Salazar has not shown that his lawyer’s decision to make an importation-
based argument against the 2-level increase and not a disparity-based one falls
below “an objective standard of reasonableness . . . under prevailing professional
norms.” Strickland, 466 U.S. at 688, 104 S.Ct. at 2064. Nor has he shown
prejudice.
AFFIRMED.
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