United States v. Saucedo ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-50545
(Summary Calendar)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD RAUL SAUCEDO,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(A-93-CR-89 & A-93-CA-100)
June 19, 1996
Before GARWOOD, WIENER and PARKER, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Richard Raul Saucedo, a federal prisoner
proceeding pro se, appeals the district court’s denial of his
§ 2255 motion to vacate, set aside, or correct his sentence.1 In
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
1
Saucedo also filed a motion for leave to file a reply brief
out of time, which was granted; however, Saucedo then failed to
this motion, Saucedo proffered issues implicating ineffective
assistance of counsel, improper sentencing under the Guidelines,
and failure of the district court to make specific findings and to
review transcripts of the sentencing and arraignment hearings. In
response, the government urged that in his plea agreement Saucedo
waived his right to appeal his sentence. For the reasons set forth
below, we affirm the rulings of the district court in part, and
vacate and remand in part.
I
FACTS AND PROCEEDINGS
Richard Raul Saucedo pleaded guilty, pursuant to a plea
agreement; however, the record is unclear as to exactly what charge
Saucedo pleaded. Saucedo’s § 2255 motion states that he was
convicted of the conspiracy charge. This is consistent with
Saucedo’s plea agreement and the Presentence Report (PSR) which
indicate that he pleaded guilty to Count One of the indictment:
conspiracy to possess with intent to distribute marijuana. Not so
the judgment, however, which states that Saucedo was convicted of
Count Three of the indictment: possession with intent to distribute
marijuana. The district court sentenced Saucedo to 63 months’
imprisonment followed by five years of supervised release, and
Saucedo did not appeal directly.
Saucedo subsequently filed a § 2255 motion alleging that
file such a brief within the additional time permitted.
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(1) the government failed to prove conspiracy because he was the
only one charged with conspiracy, (2) he was entitled to a
reduction in his base offense level for acceptance of
responsibility and minimal participation in the criminal offense,
and (3) he was denied effective assistance of counsel because his
lawyer failed to object to the PSR’s omission of these reductions.
After the government responded, Saucedo filed a pleading titled
"Traverse to the Government’s Response," raising new allegations of
ineffective assistance of counsel and alleging that the district
court erred by considering improper relevant conduct in its
sentencing determination.
The magistrate judge entered a report and recommendation which
addressed only the issues raised in Saucedo’s § 2255 motion and
recommending that it be denied. Saucedo filed objections, but the
district court adopted the magistrate judge’s report and
recommendation and denied Saucedo’s § 2255 motion. Saucedo timely
appealed after his motion for reconsideration was denied.
II
ANALYSIS
Saucedo argues on appeal that he was deprived of a full and
fair hearing when the district court failed to make the specific
finding that "the files and record of the case conclusively
disentitled the movant to the relief sought," and that the district
court could not deny him relief without reviewing copies of the
"transcript." Saucedo also argues that the district court’s
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imposition of a sentence under § 1B1.3 of the Sentencing Guidelines
and under 28 U.S.C. § 994(l)(1)(A) was improper because the court
considered dismissed counts of the indictment as relevant conduct.
Finally, Saucedo argues that he was denied effective assistance of
counsel because his lawyer failed to object to the district court’s
consideration of improper relevant conduct in sentencing and failed
to explain the PSR and post-plea proceedings to him.
Saucedo raised the issues relating to sentencing and
ineffective-assistance-of-counsel for failure to object in his
"Traverse to the Government’s Response," thereby placing them
before the district court. He is deemed to have abandoned all
other issues raised in his original § 2255 motion (ineffective
assistance of counsel for failure to object to omission of base-
offense-level reductions, improper conspiracy charge, and failure
to reduce his base offense level for acceptance of responsibility
and minimal participation) by failing to argue them on appeal. See
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). We shall
consider below only those issues that Saucedo has properly reserved
and presented on appeal.
A. Ineffective Assistance of Counsel
Liberally construing Saucedo’s appellate brief, we read it to
argue that he was denied effective assistance of counsel by his
counsel’s failure to explain to him the post-plea proceedings and
the PSR, so as to elicit his objections; and by counsel’s failure
to object to the district court's consideration of dismissed counts
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of the indictment as relevant conduct. To prevail on an
ineffective assistance claim, a petitioner must show "that
counsel's performance was deficient" and "that the deficient
performance prejudiced the defense." Strickland v. Washington, 466
U.S. 668, 687 (1984). To prove deficient performance, the
petitioner must show that counsel's actions "fell below an
objective standard of reasonableness." Id. at 688. To prove
prejudice, the petitioner 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,
and that "counsel's deficient performance render[ed] the result of
the trial unreliable or the proceeding fundamentally unfair."
Lockhart v. Fretwell, 506 U.S. 364, 372, (1993). A reasonable
probability is a probability sufficient to undermine confidence in
the outcome of the proceeding. Strickland, 466 U.S. at 694. To
prove unreliability or unfairness, the petitioner must show the
deprivation of a "substantive or procedural right to which the law
entitles him." Fretwell, 506 U.S. at 372. In evaluating such
claims, we indulge in "a strong presumption" that counsel's
representation fell "within the wide range of reasonable
professional competence, or that, under the circumstances, the
challenged action `might be considered sound trial strategy.'"
Bridge v. Lynaugh, 838 F.2d 770, 773 (5th Cir. 1988) (citation
omitted). Saucedo has the burden of overcoming that presumption.
See id. "A fair assessment of attorney performance requires that
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every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's perspective at
the time." Strickland, 466 U.S. at 689. A failure to establish
either deficient performance or prejudice defeats the claim. Id.
at 697. An ineffectiveness claim based on speculation or
conclusional rhetoric will not warrant relief. See Lincecum v.
Collins, 958 F.2d 1271, 1279-80 (5th Cir.), cert. denied, 506 U.S.
957 (1992).
We have applied the Strickland standard in the noncapital
sentencing context. Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir.
1993).
[I]n deciding such an ineffectiveness claim, a court must
determine whether there is a reasonable probability that
but for trial counsel's errors the defendant's noncapital
sentence would have been significantly less harsh. In
deciding whether such prejudice occurred, a court should
consider a number of factors: the actual amount of the
sentence imposed on the defendant by the sentencing judge
or jury; the minimum and maximum sentences possible under
the relevant statute or sentencing guidelines, the
relative placement of the sentence actually imposed
within the range, and the various relevant mitigating and
aggravating factors that were properly considered by the
sentencer.
Id. at 88-89 (footnote omitted). We noted "one foreseeable
exception to this requirement would be when a deficiency by counsel
resulted in a specific, demonstrable enhancement in sentencing --
such as an automatic increase for a `career' offender or an
enhancement for use of a handgun during a felony -- which would
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have not occurred but for counsel's error." Id. at 89 n.4.
Saucedo’s argument relating to the district court’s
consideration of relevant conduct is unclear. He might be arguing
that the district court erred by considering dismissed counts of
the indictment as a basis to enhance his sentence, and his counsel
was deficient for not objecting. Or he might be arguing that the
district court erred in calculating his base offense level by using
270 pounds of marijuana, which was the amount attributed to the
entire conspiracy in which he was involved, because the conspiracy
count was dismissed and he should have been sentenced for
possession only.
If Saucedo was convicted of the conspiracy charge, his base
offense level may be based on drugs that can be attributed to him
in a conspiracy as part of his relevant conduct, U.S.S.G.
§ 1B1.3(a)(1)(A), and the PSR provided reliable evidence to allow
the district court to make factual determinations required in
assessing an appropriate sentence. United States v. Alfaro, 919
F.2d 962, 966 (5th Cir. 1990). If Saucedo was convicted of the
possession charge, however, his arguments of ineffective assistance
of counsel for failure to object to his sentencing calculation may
have some merit.
The PSR does not adequately present counsel’s objections,
stating that Saucedo’s attorneys "submitted eleven pages of
objections, however, only one of these objections is scoring and
will be addressed in the addendum. The remaining objections appear
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to be insignificant and/or incorrect." Given (1) the discrepancy
in the record between the specific charge to which Saucedo pleaded
guilty and what he was sentenced for, (2) the PSR’s inadequate
presentation of counsel’s objections, and (3) the district court’s
failure to address this ineffective assistance of counsel argument,
we cannot properly review Saucedo’s properly presented assertions.
Accordingly, we remand this issue to the district court for
clarification and findings.
Next —— and for the first time on appeal —— Saucedo raises the
issue of ineffective assistance of counsel resulting from his
lawyer’s failure to explain post-plea proceedings and the PSR.
"[I]ssues raised for the first time on appeal are not reviewable by
this [C]ourt unless they involve purely legal questions and failure
to consider them would result in manifest injustice." Varnado v.
Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). As Saucedo’s
ineffective-assistance-of-counsel claim involves a mixed question
of law and fact, we need not, and therefore do not, consider it.
See id.; United States v. Faubion, 19 F.3d 226, 228 (5th Cir.
1994). Given the discrepancy in the record, however, this issue
may have some merit. It is therefore remanded to the district
court for consideration along with the other remanded claim of
ineffective assistance of counsel.
B. Sentence
Relief under § 2255 is reserved for transgressions of
constitutional rights and for a narrow range of injuries that could
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not have been raised on direct appeal and would, if condoned,
result in a complete miscarriage of justice. United States v.
Capua, 656 F.2d 1033, 1037 (5th Cir. 1981). A district court's
technical application of the Guidelines does not give rise to a
constitutional issue. United States v. Vaughn, 955 F.2d 367, 368
(5th Cir. 1992).
Saucedo's challenge to the district court's application of
§ 1B1.3 of the Guidelines is not cognizable under § 2255. See id.
His reliance upon § 994(l)(1)(A)2 is misplaced, as this provision
is a Sentencing Commission policy statement relating to application
of the Guidelines to a multiple-offense conviction. Saucedo
pleaded guilty to one offense only and the district court sentenced
him for one offense only. Saucedo neither alleges any violation of
his constitutional rights by the district court’s action, nor
explains how the court violated this provision. Therefore, this
challenge is not cognizable under § 2255. See Vaughn, 955 F.2d at
368. Even though the district court failed to address these
sentencing issues, such omission is immaterial because Saucedo’s
allegations are not cognizable under § 2255.
2
"(l) The Commission shall insure that the guidelines
promulgated pursuant to subsection (a)(1) reflect-
(1) the appropriateness of imposing an incremental penalty
for each offense in a case in which a defendant is convicted
of -
(A) multiple offenses committed in the same course of
conduct that result in the exercise of ancillary
jurisdiction over one or more of the offenses . . ."
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C. District Court’s Findings; Full and Fair Hearing
Saucedo argues that the district court erred by failing to
make the specific finding that the files and record conclusively
show that he is not entitled to the relief sought, contending that
§ 2255 requires this specific finding. Saucedo insists that he was
denied a full and fair hearing on the issues presented because the
district court could not deny him relief without reviewing
transcripts of the sentencing proceeding and arraignment, which
were not filed.
Section 2255 does not state that the court must enter such
specific finding. See § 2255. Rule 4(b) of the Rules Governing
§ 2255 Proceedings states that the court may order summary
dismissal of a motion if it "plainly appears from the face of the
motion and any annexed exhibits and the prior proceedings in the
case that the movant is not entitled to relief. . . ." This rule
does not require the specific finding that Saucedo urges. The
magistrate judge entered sufficient findings of fact and
conclusions of law in the report and recommendation adopted by the
district court. This argument has no merit.
On the other hand, Saucedo’s argument that the district court
could not make a determination that he was not entitled to § 2255
relief without reviewing the arraignment and sentencing transcripts
may have some merit, given the discrepancy in the record discussed
above. Review of the transcripts may have been necessary to the
district court’s determination of some of Saucedo’s allegation in
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his § 2255 motion. The district court did not need the sentencing
transcript to determine the merits of the noncognizable issues;
however, the transcripts may have been needed for a valid
determination of the ineffective-assistance-of-counsel issues.
But, inasmuch as we are remanding the ineffective-assistance-of-
counsel issues anyway, we need not here determine the merits of
this argument. Rather, we commend the question to the district
court for its reconsideration when conducting further proceedings
on remand of the other issues.
We do not address here the government’s argument that Saucedo
waived his right to challenge his sentence under § 2255 in his plea
agreement. As the record is unclear as to which charge Saucedo was
convicted of and under which charge he was sentenced, we do not
consider this argument. The government may raise it again after
the district court provides clarification.
AFFIRMED in part; VACATED and REMANDED in part.
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