M. Leanos-Marquez v. United States , 206 F. App'x 647 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-4289
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United States of America, *
*
Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Matias Leanos-Marquez, *
* [UNPUBLISHED]
Defendant-Appellant. *
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Submitted: September 25, 2006
Filed: November 22, 2006
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Before WOLLMAN, BRIGHT, and BOWMAN, Circuit Judges.
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PER CURIAM.
A jury convicted Matias Leanos-Marquez of conspiring to distribute
methamphetamine and marijuana, 21 U.S.C. § 841(b)(1) (Count 1), distributing more
than fifty grams of methamphetamine, 21 U.S.C. § 841(a)(1) (Count 8), and
distributing methamphetamine to an individual under twenty-one years of age, 21
U.S.C. § 859 (Count 9). The district court sentenced Leanos-Marquez to 224 months’
imprisonment and we affirmed his convictions and sentence. United States v. Leanos-
Marquez, 323 F.3d 679 (8th Cir.), cert. denied, 540 U.S. 916 (2003).
In his present 28 U.S.C. § 2255 motion, Leanos-Marquez asserted a right to
relief on four claims: (1) the government’s use of a minor to record incriminating
conversations violated his Fourth and Fifth Amendment rights, (2) the jury foreman’s
failure to sign the line beneath Count 9 (distributing methamphetamine to an
individual under twenty-one years of age) on the verdict form demonstrated a lack of
unanimity, (3) counsel was ineffective for failing to poll the jury to discover the lack
of unanimity, and (4) his sentence violated Apprendi v. New Jersey, 530 U.S. 466
(2000), and United States v. Booker, 543 U.S. 220 (2005). The district court1 denied
his motion, but granted him a certificate of appealability on all four claims. He
presses the first three claims in this court and we affirm the district court’s denial of
relief on each claim.
We recount only the facts necessary to address Leanos-Marquez’s claims. The
evidence of Leanos-Marquez’s guilt included two tape-recorded conversations
between him and Jose Ramirez, who was seventeen-years-old at the time. Ramirez
obtained drugs from Leanos-Marquez and owed him approximately $33,000. After
the police arrested Ramirez for possessing one pound of methamphetamine, he agreed
to record two meetings with Leanos-Marquez. Ramirez testified at trial and the
prosecution introduced the two tape-recorded conversations. The jury returned guilty
verdicts against Leanos-Marquez on Counts 1, 8, and 9, and acquitted him on Count
2, which alleged that he possessed a firearm in furtherance of a drug crime, 18 U.S.C.
§ 924. The jury foreman did not, however, sign the line—one of eighteen—on the
verdict form that accompanied the finding of guilt on Count 9. The omission went
unnoticed, counsel did not poll the jury, and the court sentenced Leanos-Marquez.
As to the first claim—that agents’ use of a cooperative seventeen-year-old to
obtain tape recordings violated Leanos-Marquez’s Fifth Amendment right to due
process—Leanos-Marquez argues that agents’ use of “a 17 year-old to further their
investigation is outrageous and contravenes the Constitutional edict that no person be
1
The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.
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‘deprived of life, liberty, or property, without due process of law.’” He is entitled to
relief only if the “conduct of law enforcement agents is so outrageous that due process
principles would absolutely bar the government from invoking judicial processes to
obtain a conviction[.]” United States v. Russell, 411 U.S. 423, 431-32 (1973). But
here, the agent’s use of a cooperative seventeen-year-old to investigate the individual
suspected of selling him drugs is not outrageous, despite his age, and thus does not
rise to the level of a due process violation.
Leanos-Marquez’s argument also fails as a Fourth Amendment claim. He
cannot assert Ramirez’s personal right to challenge his consent to the tape recording.
See Alderman v. United States, 394 U.S. 165, 174 (1969) (“Fourth Amendment rights
are personal [and] . . . may not be vicariously asserted.”).
We also reject Leanos-Marquez’s claim that the jury did not reach a unanimous
verdict on Count 9. He argues that the absence of the jury foreman’s signature on the
line accompanying the finding of guilt on Count 9 constitutes conclusive proof that
the jury did not reach unanimity. The government, however, asserts that the missing
signature was simply an oversight and, without more, does not demonstrate a lack of
unanimity.
The Sixth Amendment guarantees a defendant’s right to a unanimous jury
verdict. United States v. Hiland, 909 F.2d 1114, 1136 (8th Cir. 1990). By entering
a guilty verdict on Count 9, the trial court made the implicit factual finding that the
jury reached a unanimous verdict. See United States v. Alarcon-Simi, 300 F.3d 1172,
1177 (9th Cir. 2002). The habeas court, reviewing the record, reached the same
factual finding, which we review for clear error. See Williams v. United States, 452
F.3d 1009, 1012 (8th Cir. 2006) (habeas court’s factual findings reviewed for clear
error). The only evidence supporting Leanos-Marquez’s argument is the missing
signature, but without more he has not demonstrated a lack of unanimity sufficient to
overcome the district court’s finding. He cannot, moreover, successfully argue that
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he received ineffective assistance of counsel because he has not shown he was
prejudiced by counsel’s failure to poll the jury. See United States v. Jones, 403 F.3d
604, 605 (8th Cir. 2005) (habeas petitioner alleging ineffective assistance of counsel
must demonstrate both deficient performance and “a reasonable probability that, but
for this deficiency in performance, the result of the proceeding would have been
different”).
Finally, though Leanos-Marqez does not pursue the argument here, the district
court did not err by rejecting his Booker argument. We have held that Booker does
not apply retroactively to cases on collateral review. See Lefkowitz v. United States,
446 F.3d 788, 791 (8th Cir. 2006); Never Misses A Shot v. United States, 413 F.3d
781, 783 (8th Cir. 2005).
Accordingly, we affirm the district court’s denial of relief.
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