Miguel Bustamante v. United States , 367 F. App'x 708 ( 2010 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 17, 2010*
Decided March 17, 2010
Before
RICHARD A. POSNER, Circuit Judge
DANIEL A. MANION, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 09-3096
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 08 C 3508
MIGUEL BUSTAMANTE,
Defendant-Appellant. James F. Holderman,
Chief Judge.
ORDER
FBI agents uncovered drugs and a handgun in Miguel Bustamante’s car, and he was
sentenced to 123 months’ imprisonment on the charges that followed. Bustamante asked
the district court to vacate his sentence, 28 U.S.C. § 2255, claiming, as relevant here, that his
attorney was ineffective for not moving to suppress his admission that the car was his, a
statement he made without the benefit of Miranda warnings. The district court denied the
motion but granted Bustamante a certificate of appealability. We affirm the judgment.
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. A PP. P.
34(a)(2)(C).
No. 09-3096 Page 2
Bustamante, a suspected player in a cocaine conspiracy, was arrested at the home of
a female companion. Before giving him Miranda warnings, agents asked Bustamante if a
car parked behind the building belonged to him, and he admitted that it did. Later, after
he had invoked his right to counsel, agents obtained his consent to search the vehicle and
found cocaine and a handgun inside its console. Bustamante was charged for his role in
the drug conspiracy, 21 U.S.C. §§ 846, 841(a)(1), as well as possession with intent to
distribute cocaine, id. § 841(a)(1), unlawful possession of a firearm after a felony conviction,
18 U.S.C. § 922(g)(1), and carrying a firearm in relation to a drug offense, id. § 924(c)(1). He
moved to suppress the evidence found inside his car, asserting only that his consent to
search was obtained in violation of Miranda; he said nothing about suppressing his related
admission that he was the car’s owner. The district court denied the motion, and
Bustamante later pleaded guilty to all but the conspiracy charge. On direct appeal he
challenged the district court’s ruling on his suppression motion, but we affirmed the
judgment, concluding that there had been no constitutional violation because a request for
consent to search a vehicle is not “interrogation” for purposes of Miranda. United States v.
Bustamante, 493 F.3d 879, 892 (7th Cir. 2007).
In his § 2255 motion, Bustamante argued that his attorney provided ineffective
assistance by not moving to suppress his admission that he was the owner of the vehicle
parked outside his girlfriend’s apartment. To establish that he received ineffective
assistance of counsel, Bustamante was required to prove that his lawyer’s performance was
deficient and that, but for the alleged deficiency, he would not have pleaded guilty. See Hill
v. Lockhart, 474 U.S. 52, 59 (1985); Strickland v. Washington, 466 U.S. 668, 687 (1984); United
States v. Peleti, 576 F.3d 377, 383 (7th Cir. 2009). When a claim of ineffective assistance is
premised on an attorney’s failure to file a motion to suppress, the defendant must prove
that the motion would have been meritorious. United States v. Cieslowski, 410 F.3d 353, 360
(7th Cir. 2005).
The government concedes that Bustamante would have prevailed if his attorney had
moved to suppress his admission of ownership. As we have held, where the police do
more than ask for consent to search and inquire “as to ownership of that which is searched,
the inquiry crosses the threshold into testimonial incrimination and is therefore barred
unless the safeguards of Miranda have been put in place.” United States v. Smith, 3 F.3d
1088, 1098-99 (7th Cir. 1993); see also United States v. Henley, 984 F.2d 1040, 1042-43 (9th Cir.
1993); United States v. Monzon, 869 F.2d 338, 341-42 (7th Cir. 1989).
But that is not enough to demonstrate that counsel’s performance was
constitutionally deficient. Even assuming that the district court would have granted a
motion to suppress Bustamante’s admission, the government’s case against him would
No. 09-3096 Page 3
have remained the same because his consent to search the car and the physical evidence
that was discovered would still be admissible. See United States v. Patane, 542 U.S. 630, 633-
34 (2004) (plurality opinion); United States v. Renken, 474 F.3d 984, 988 (7th Cir. 2007).
Bustamante has never asserted, and there is no reason to believe, that the government
would have been unable to connect him to the vehicle without his admission of ownership.
Cf. Henley, 984 F.2d at 1044-45; see also Gentry v. Sevier, No. 08-3574, 2010 WL 668901, at *9
(7th Cir. Feb. 26, 2010) (concluding that counsel’s performance was constitutionally
deficient where motion to suppress evidence would have been meritorious and
government could not have convicted defendant without the excluded evidence). For
example, although the record is silent about whether the car was registered to Bustamante,
his girlfriend told agents that the keys to the car found during a search of her bedroom
belonged to him. An attorney is not required to pursue an argument that can lead only to a
dead end for his client. Cf. United States v. Harris, 394 F.3d 543, 555-56 (7th Cir. 2005); United
States v. Rezin, 322 F.3d 443, 446 (7th Cir. 2003). Bustamante had nothing to gain from
having his admission of ownership excluded, and thus his lawyer’s decision to forego a
motion to suppress was a sound strategic decision that cannot give rise to a claim of
ineffective assistance of counsel. See Cieslowski, 410 F.3d at 360-61.
AFFIRMED.