United States v. Torres-Jaurequi ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50246
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS RAUL TORRES-JAUREQUI,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. P-96-CV-09
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March 19, 1998
Before WISDOM, WIENER and DENNIS, Circuit Judges.
PER CURIAM:*
Luis Raul Torres-Jaurequi appeals from the district court’s
order dismissing his motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255. Torres-Jaurequi argues
that the district court erred in finding no significant variance
between the indictment and the evidence where the indictment
accused him of importing methamphetamine into the United States
but the evidence shows he never entered into the United States,
but remained in customs territory. He further argues that the
*
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that this opinion should not be published and is not precedent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.
No. 97-50246
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district court erred in finding that trial counsel had been
ineffective for not challenging that variance, for failing to
challenge a variation in the Allen charge, and for failing to
request an independent lab report of the drugs seized in the
offense. We have reviewed the record and the briefs and find
that Torres-Jaurequi has not demonstrated error, much less plain
error pertaining to the indictment for importation of
methamphetamine. See United States v. McPhail, 112 F.3d 197, 199
(5th Cir. 1997); United States v. Calverley, 37 F.3d 160, 162
(5th Cir. 1994)(en banc), cert. denied, 513 U.S. 1996 (1995);
United States v. Armstrong, 951 F.2d 626 (5th Cir. 1992). As
Torres-Jaurequi’s argument concerning the language of the
indictment is without merit, he has plainly failed to demonstrate
that his defense was prejudiced by counsel’s failure to assert
any such error at trial. See Lowery v. Estelle, 696 F.2d 333,
343 (5th Cir. 1983).
Torres-Jaurequi also argues that his attorney was
ineffective for failing to adequately challenge the modified
Allen charge delivered by the court at trial. See Allen v.
United States, 164 U.S. 492, 501-02 (1996). We examined that
issue on direct appeal and found no error. United States v.
Torres-Jaurequi, No. 94-50233 at 5 n.5 (5th Cir. Aug. 3,
1995)(unpublished). As there was no error with regard to the
Allen charge, Torres-Jaurequi’s counsel could hardly have been
deficient for failing to object to it. See Lowery, 696 F.2d at
No. 97-50246
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343. Similarly, as the Government’s laboratory report showed the
substance from Torres-Jaurequi’s car tested positive for
approximately 22,000 grams of D-methamphetamine of 86% purity, a
demand by counsel for an independent lab report would have proved
futile, and there was no plain error in counsel’s not requesting
a second report. See McPhail, 112 F.3d at 199; Lowery, 696 F.2d
at 343.
AFFIRMED.