United States v. Wilfredo Carranza , 645 F. App'x 297 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4631
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILFREDO ANTONIO ROMERO CARRANZA, a/k/a Wilfredo Romero,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:13-cr-00230-WO-2)
Submitted: March 25, 2016 Decided: April 22, 2016
Before GREGORY and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Charles R. Brewer, Asheville, North Carolina, for Appellant.
Ripley Rand, United States Attorney, Kyle D. Pousson, Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wilfredo Antonio Romero Carranza was convicted by a jury
and sentenced to an aggregate sentence of 84 months in prison
for one count each of conspiracy to operate a chop shop, in
violation of 18 U.S.C. § 371 (2012); operating a chop shop, in
violation of 18 U.S.C. §§ 2, 2322(a)(1) (2012); possession of
concealed stolen vehicles, in violation of 18 U.S.C. § 2313
(2012); and three counts of transporting stolen motor vehicles,
in violation of 18 U.S.C. §§ 2, 2312 (2012) (the “chop shop
case”). He now appeals his conviction and sentence, assigning a
number of errors. Finding no reversible error, we affirm.
Carranza first asserts that the district court erred by
denying his motion to substitute counsel “in view of the serious
breakdown” in his relationship with his court-appointed
attorney. We review the district court’s decision for abuse of
discretion. See United States v. Perez, 661 F.3d 189, 191 (4th
Cir. 2011). “In determining whether a district court abused its
discretion in denying a motion for new counsel,” we consider the
“timeliness of the motion; the adequacy of the court’s inquiry
into the defendant’s complaint; and whether the attorney/client
conflict was so great that it resulted in a total lack of
communication preventing an adequate defense.” Id. (internal
quotation marks omitted). Carranza complained about his defense
counsel’s representation relatively early on, so his de facto
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motion was timely. We nonetheless conclude that the district
court’s inquiry into counsel’s representation was thorough and
complete; the district court conducted multiple hearings in the
course of considering and rejecting Carranza’s numerous
complaints. And as the district court expressly found, the
conflict between Carranza and defense counsel was not so great
that it resulted in a total lack of communication preventing an
adequate defense. Any suggestion to the contrary is belied by
the record: Counsel successfully moved to have Carranza’s
charges severed, selected juries, questioned witnesses, objected
to testimony and evidence, moved to have one of the counts
against Carranza dismissed and, at sentencing, argued on
Carranza’s behalf for a sentence less than the one ultimately
imposed. Viewed as a whole, these circumstances reveal that
Carranza and his counsel shared meaningful communication such
that Carranza was able to mount a defense. See United States v.
Hanley, 974 F.2d 14, 17 (4th Cir. 1992) (holding that counsel’s
vigorous defense at trial indicated a lack of complete
communication breakdown).
Next, Carranza claims the district court violated his
attorney-client privilege by inquiring into Carranza’s
complaints about his attorney in open court. According to
Carranza, the district court “should have inquired into these
matters in private as suggested in Daniels v. Woodford[, 428
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F.3d 1181 (9th Cir. 2005).]” In Daniels, the defense attorney
asserted -- in opposing a prosecution motion to have defense
counsel removed -- that the attorney-client privilege prevented
him from revealing his communications with his client. Daniels,
428 F.3d at 1189. In this case, neither Carranza nor his
attorney invoked the attorney-client privilege. In fact, during
the first of the hearings into Carranza’s motions, the district
court informed Carranza that “if at any point we need to have --
excuse the prosecutor, if there is anything confidential or
privileged, just let me know, because I’m glad to do that if it
needs to be done.” Neither Carranza nor his attorney ever
indicated that they wished to discuss matters outside the
Government’s presence. Accordingly, we discern no reversible
error stemming from the district court’s general inquiry into
defense counsel’s representation in open court.
Third, Carranza argues the district court erred by refusing
to consider his pro se objections to his presentence report
(“PSR”), or his pro se motion to dismiss the indictment against
him based on the conditions of his confinement. A criminal
defendant has no statutory or constitutional right to proceed
pro se while simultaneously being represented by counsel. See
McKaskle v. Wiggins, 465 U.S. 168, 183 (1984) (recognizing that
Faretta v. California, 422 U.S. 806 (1975), does not require a
district court to permit “hybrid representation”). Accordingly,
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the district court was not obligated to consider Carranza’s pro
se motion or objections.
Fourth, Carranza asserts the district court miscalculated
his sentence. Specifically, he argues the district court
misapplied § 2B1.1(b)(2)(B) of the version of the United States
Sentencing Guidelines applicable at the time of his sentencing,
which provided for a four-level increase in a defendant’s
offense level if the underlying offense involved more than 50
victims. Although the Government’s memorandum with respect to
restitution identified only 24 victims, we have previously
explained in a related context that “losses relevant to finding
the appropriate offense level and therefore the proper sentence
of imprisonment is . . . not the same question as the amount of
losses properly covered by an order of restitution.” United
States v. Newsome, 322 F.3d 328, 338 (4th Cir. 2003). And a
review of Carranza’s PSR and the Government’s restitution
memorandum indicate that 24 different insurance companies and at
least 47 individuals were victimized by his offenses. As a
result, we see no error in the district court’s application of
§ 2B1.1(b)(2)(B).
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Finally, Carranza claims he received ineffective assistance
of counsel during his criminal trials 1 and at sentencing. It is
well-established that ineffective assistance of counsel claims
may be addressed on direct appeal only if the attorney’s
ineffectiveness conclusively appears on the record. United
States v. Powell, 680 F.3d 350, 359 (4th Cir. 2012). To
establish ineffective assistance of counsel, Carranza bears the
burden of showing that: (1) counsel’s performance was
constitutionally deficient; and (2) the deficient performance
was prejudicial. Strickland v. Washington, 466 U.S. 668, 687-
88, 691-92 (1984). To satisfy the first hurdle, Carranza must
demonstrate “that counsel’s representation fell below an
objective standard of reasonableness.” Id. at 688. In
evaluating counsel’s performance, we “must indulge a strong
presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance; that is, the defendant
1Carranza was also convicted—in a separate case and by a
separate jury—of unlawful reentry of felon, in violation of 8
U.S.C. § 1326 (2012) (“the reentry case”). United States v.
Carranza, No. 1:13-cr-00419-WO-1 (M.D.N.C., PACER No. 14). A
consolidated PSR was prepared for the cases and Carranza was
sentenced in both cases at the same time, thereby resulting in a
single judgment. Counsel successfully moved to sever the appeal
and we recently affirmed the district court’s judgment to the
extent it pertains to the reentry case. See United States v.
Carranza, No. 14-4632, 2016 WL 930199 (4th Cir. March 11, 2016)
(unpublished). Thus, only the district court’s judgment as it
pertains to the chop shop case is at issue on this appeal.
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must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.”
Id. at 689 (internal quotation marks omitted). To establish
prejudice under Strickland, Carranza must demonstrate “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. We have considered Carranza’s
claims and conclude that ineffective assistance does not
conclusively appear on the record. Accordingly, Carranza’s
claims should be raised, if at all, in a 28 U.S.C. § 2255 (2012)
motion. 2 See United States v. Baldovinos, 434 F.3d 233, 239 &
n.4 (4th Cir. 2006).
In sum, having found no reversible error, we affirm the
district court’s judgment as it pertains to the chop shop case.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
2We of course express no opinion on the merits of any
ineffective assistance of counsel claims Carranza might choose
to raise in some future habeas proceeding.
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