United States v. Garza ( 1999 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-41024
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MARCO GARZA, SR.,
Defendant Appellant.
No. 97-41069
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MARCO GARZA, JR.,
Defendant-Appellant.
Appeals from the United States District Court
for the Southern District of Texas
(M-96-CV-17 & M-93-CR-54-3)
March 9, 1999
Before DAVIS, STEWART and PARKER, Circuit Judges.
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PER CURIAM:*
Marco Garza, Sr., (“Senior”) federal prisoner # 64241-079, and
Marco Garza, Jr., (“Junior”) federal prisoner # 39697-079, father
and son (collectively “the Garzas”), appeal the denial of their 28
U.S.C. § 2255 motions. We affirm.
FACTS AND PROCEDURAL HISTORY
The Garzas were charged with seven counts of money laundering
in violation of 18 U.S.C. § 1956(a)(1)(B)(i), one count of
conspiracy to launder money, four counts of structuring a
transaction in violation of 31 U.S.C. § 5324, and one conspiracy
count embracing the structuring transactions. After a jury trial,
Senior was found guilty on all counts. Junior was found guilty of
the money laundering and conspiracy to launder money charges but
was acquitted on the other counts.
This court affirmed the Garzas' convictions on the money
laundering counts and the conspiracy to launder money count and
reversed Senior's convictions for structuring transactions and
conspiracy to structure transactions. See United States v. Garza,
42 F.3d 251, 254 (5th Cir. 1994). The reversed counts were later
dismissed on a motion by the Government.
On February 7, 1996, Senior filed a 28 U.S.C. § 2255 motion
asserting sixteen grounds for relief. The district court denied
the § 2255 motion but granted Senior a certificate of probable
cause (CPC) on his contention “that the Court erred by failing to
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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instruct the jury that willfulness was an element of the money
laundering offense because the government included the term
'willful' in the indictment.” On April 18, 1997, Junior filed a §
2255 motion. The district court denied relief but granted Junior
a certificate of appealability (COA) on the same issue. We then
consolidated the Garzas' appeals.
SCOPE OF APPEAL
The threshold issue concerns the scope of appellate review.
Senior filed his § 2255 motion before the April 24, 1996 effective
date of the Antiterrorism and Effective Death Penalty Act (AEDPA).
Therefore, the AEDPA is not applicable, and he was not required to
obtain a COA to proceed on appeal. See Lindh v. Murphy, 117 S. Ct.
2059, 2068 (1997). Because appeals in § 2255 cases were of right
prior to the AEDPA, Senior likewise needs no CPC. See United
States v. Rocha, 109 F.3d 225, 228 (5th Cir. 1997). Accordingly,
we review all of the issues raised in Senior's brief.
Junior is required to obtain a COA pursuant to the AEDPA
because he did not file his § 2255 motion until April 18, 1997.
Appellate review as to Junior is therefore limited to the
constructive amendment of indictment issue specified in the grant
of COA. See Lackey v. Johnson, 116 F.3d 149, 151-52 (5th Cir.
1997).
ANALYSIS
The Garzas contend that the omission of the term “willfully”
from the jury instructions constitutes an impermissible amendment
of the indictment. Although defense counsel objected to the jury
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charge on this basis at trial, the Garzas did not raise the issue
on direct appeal. In addition to disputing the merits of the
Garzas' constructive amendment claim, the Government contends that
the issue is procedurally barred, and that defense counsels'
failure to raise the issue on direct appeal does not constitute
ineffective assistance of counsel. The government invoked the
procedural bar in district court. See United States v. Drobney,
955 F.2d 990, 994-95 (5th Cir. 1995).
“Relief under . . . § 2255 is reserved for transgressions of
constitutional rights and for a narrow range of injuries that could
not have been raised on direct appeal and would, if condoned,
result in a complete miscarriage of justice.” United States v.
Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). A defendant who raises
a constitutional or jurisdictional issue for the first time on
collateral review must show “both 'cause' for his procedural
default and 'actual prejudice' resulting from the error.” United
States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991)(quoting United
States v. Frady, 456 U.S. 152, 158 (1982)). “Ineffective
assistance of counsel satisfies the cause and prejudice standard.”
United States v. Patten, 40 F.3d 774, 776 (5th Cir. 1994).
The Garzas contend that their attorneys were ineffective for
failing to raise the constructive-amendment-of-indictment issue on
direct appeal. To prevail on an ineffectiveness-of-counsel claim,
a defendant must show that his counsel's performance was deficient
and that he was prejudiced by that deficient performance.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Assuming,
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without deciding, that the Garzas' constructive amendment argument
has merit, they cannot demonstrate that their appellate counsel
were ineffective for failing to assert every colorable issue on
appeal. Jones v. Barnes, 463 U.S. 745, 754 (1983). There is no
Fifth Circuit jurisprudence dispositive of the constructive
amendment question presented. We also note that the Eleventh
Circuit case cited as primary support for the argument, United
States v. Cancelliere, 69 F.3d 1116 (11th Cir. 1995), was not
decided at the time of the direct appeal in this case. We conclude
both Senior and Junior were afforded counsel whose conduct on
direct appeal fell well within the range of adequate professional
assistance. See Strickland, 104 S. Ct. at 2065.
CONCLUSION
Having reviewed the record, we find no merit in Senior's other
claims of ineffective assistance of counsel, in his assertion that
18 U.S.C. § 1956(a)(1)(B)(i) is unconstitutionally vague, his
attack on the wording of the co-conspirator liability jury charge,
or his allegations of prosecutorial misconduct and insufficiency of
the evidence.
For the foregoing reasons, we AFFIRM the denial of § 2255
relief as to both Marco Garza, Sr. and Marco Garza, Jr.
AFFIRMED.
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