United States v. Arthur Cardenas ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 15 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30088
Plaintiff-Appellee, D.C. No.
2:14-cr-00087-WFN-1
v.
ARTHUR FRANK CARDENAS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, District Judge, Presiding
Submitted May 10, 2018**
Seattle, Washington
Before: GOULD and IKUTA, Circuit Judges, and TUNHEIM,*** Chief District
Judge.
Arthur Cardenas was convicted by a jury on five counts relating to his illegal
possession of weapons and almost 250 grams of methamphetamine. Cardenas
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
argues (1) that the district court erred in denying his motion to suppress evidence
and in not granting him a hearing under Franks v. Delaware, 438 U.S. 154, 155–56
(1978), which provides that under certain circumstances defendants are entitled to
hearings to determine whether there was a false statement recklessly or
intentionally included in a warrant affidavit that was necessary to a finding of
probable cause; (2) that he received ineffective assistance of counsel; and (3) that a
jury needed to determine beyond a reasonable doubt the quantity of
methamphetamine he possessed before the district court could calculate his base
offense level under the United States Sentencing Guidelines (“U.S.S.G.”) § 2D1.1.
We affirm.
1. Cardenas identified a few omissions in the warrant application: It left
out information that suggested Alicia Favro—whose statement was offered in
support of the application—was an unreliable witness and that a neighbor—whose
statement also supported the application—identified the man she saw engaged in a
shootout as white and wearing a white shirt when Cardenas is Hispanic and was
wearing a black shirt with a white design. But even without Favro’s statement, and
even if the alleged inconsistency in the neighbor’s statement had been provided,
the facts recounted in the warrant application easily would have been sufficient to
support a finding of probable cause. Thus “no constitutional error . . . occurred,”
and the district court did not err in denying Cardenas’s motion to suppress and
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request for a Franks hearing. See Bravo v. City of Santa Maria, 665 F.3d 1076,
1084 (9th Cir. 2011).
2. Next, Cardenas argues that his lawyer, John Crowley, was ineffective
because he (1) did not seek a severance of the felon in possession charges from the
other charges, (2) did not communicate a plea deal offer to Cardenas, and (3) had
an inherent conflict because he was representing Cardenas pro bono.
We adopt a “strong presumption” that Crowley employed sound trial
strategy. See Sanders v. Cullen, 873 F.3d 778, 813 (9th Cir. 2017) (quoting
Strickland v. Washington, 466 U.S. 668, 689 (1984)). Here, Crowley provided
rational justifications for why he did not seek severance, the strongest being that he
did not want to allow the government two trials, giving it a chance to perfect its
case during the first. Also, the parties stipulated that Cardenas was a convicted
felon, so the jury did not need to be told the details of his criminal record. This
avoided the prejudice of having Cardenas’s entire criminal history conveyed to the
jurors. See United States v. Nguyen, 88 F.3d 812, 815 (9th Cir. 1996) (noting that
stipulating that a defendant has a criminal record, to avoid having the jury hear
about prior bad acts, can be a way to minimize prejudice). We conclude that
Crowley’s decision not to seek a severance was not unreasonable and did not
constitute ineffective assistance of counsel.
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Further, Cardenas offers nothing to suggest that the district court’s finding
that Crowley communicated the plea deal offer to him was clearly erroneous. See
United States v. Alvarez-Tautimez, 160 F.3d 573, 575 (9th Cir. 1998) (requiring a
showing of clear error to overturn a district court’s factual findings). We reject
Cardenas’s contention that Crowley did not convey plea deal offers to him.
As to Cardenas’s contention that Crowley had a conflict of interest with him
because Crowley represented him pro bono, Cardenas must “prove actual conflict,
not just a possibility of conflict, ‘through a factual showing on the record.’”
United States v. Nickerson, 556 F.3d 1014, 1019 (9th Cir. 2009) (quoting United
States v. Moore, 159 F.3d 1154, 1157 (9th Cir. 1998)). The mere fact that Crowley
represented Cardenas pro bono is insufficient to show an actual conflict by itself.
See Williams v. Calderon, 52 F.3d 1465, 1473 (9th Cir. 1995). Cardenas vaguely
asserts that Crowley should have performed additional investigation, but the few
concrete omissions that Cardenas identifies are insufficient to demonstrate any
actual conflict. We conclude that Cardenas did not receive ineffective assistance
of counsel.
3. Cardenas contends that a jury needed to determine the quantity of
methamphetamine he possessed beyond a reasonable doubt before the judge could
calculate his U.S.S.G. range based on that quantity. This contention is not correct:
We have squarely held that “as with all factors which increase a defendant’s
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offense level, the government is required to prove the approximate quantity by a
preponderance of the evidence.” United States v. Culps, 300 F.3d 1069, 1076 (9th
Cir. 2002) (emphasis added) (quoting United States v. August, 86 F.3d 151, 154
(9th Cir. 1996)). And a district court is tasked with resolving factual disputes
regarding drug quantity by applying the preponderance of the evidence standard at
sentencing. See United States v. Flores, 725 F.3d 1028, 1035 (9th Cir. 2013). The
cases that Cardenas cites requiring that facts that increase the statutory minimum
or maximum penalty for an offense must be proved to a jury beyond a reasonable
doubt are beside the point. Adjusting a sentencing guidelines range is not the same
as altering the statutory penalty for an offense. There was no need for the district
court to submit the question of the quantity of methamphetamine Cardenas
possessed to a jury. See id.
AFFIRMED.
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