United States v. Vince Cruz , 420 F. App'x 780 ( 2011 )


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  •                                                                             FILED
    NOT FOR PUBLICATION                              MAR 14 2011
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                        No. 10-10237
    Plaintiff - Appellee,             D.C. No. 1:04-cr-00053-FTG
    v.
    MEMORANDUM *
    VINCE LUIS HOCOG CRUZ,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the District of Guam
    Frances Tydingco-Gatewood, Chief Judge, Presiding
    Submitted March 8, 2011 **
    Before:        FARRIS, LEAVY, and BYBEE, Circuit Judges.
    Vince Luis Hocog Cruz appeals from his jury-trial conviction and 130-
    month sentence imposed for possession of methamphetamine hydrochloride with
    intent to distribute, in violation of 
    21 U.S.C. § 841
    (a)(1). We have jurisdiction
    under 
    28 U.S.C. § 1291
    , and we affirm.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    Cruz contends that counsel was ineffective for failing to object to hearsay
    statements introduced at trial. We decline to address this claim on direct appeal as
    the record is insufficiently developed, and Cruz’s legal representation was not so
    inadequate that it obviously denied the Sixth Amendment right to counsel. See
    United States v. Ross, 
    206 F.3d 896
    , 900 (9th Cir. 2000).
    Cruz also contends that the district court erred because its Guidelines
    calculation was based upon the erroneous conclusion that the jury determined that
    he was responsible for 31.9 grams of methamphetamine hydrochloride. Although
    the district court erred by instructing the jury that the government was not required
    to prove the amount or quantity of methamphetamine hydrocholoride; the error
    was harmless beyond a reasonable doubt because the overwhelming and
    uncontested evidence indicated that Cruz was in possession of 31.9 grams of the
    substance. See United States v. Gracidas-Ulibarry, 
    231 F.3d 1188
    , 1197-98 (9th
    Cir. 2000) (en banc). Accordingly, the district court did not procedurally err by
    improperly calculating the Guidelines range. See Gall v. United States, 
    552 U.S. 38
    , 51 (2007).
    AFFIRMED.
    2                                     10-10237
    

Document Info

Docket Number: 10-10237

Citation Numbers: 420 F. App'x 780

Judges: Bybee, Farris, Leavy

Filed Date: 3/14/2011

Precedential Status: Non-Precedential

Modified Date: 8/3/2023