United States v. Armijo , 314 F. App'x 113 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 2, 2008
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 08-2183
v. (D.C. Nos. 07-CV-01121 and
05-CR-01796-RB-1)
ARTURO DAVID ARMIJO, (D.N.M.)
Defendant - Appellant.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before TACHA, KELLY, and McCONNELL, Circuit Judges.
Defendant-Appellant, Arturo David Armijo seeks to appeal from the denial
of his 28 U.S.C. § 2255 motion. Mr. Armijo pled guilty to possession with intent
to distribute 50 grams and more of methamphetamine, 21 U.S.C. §§ 841(a)(1),
(b)(1)(A), and was sentenced to 151 months’ and five years’ supervised release.
D. Ct. (CR 05-1796) Docket No. 71. His sentence was in part attributable to an
enhancement based upon possession of a firearm. Mr. Armijo waived his right to
appeal his conviction and any sentence within the statutory maximum, as well as
to make any collateral attack pursuant to § 2255, except for ineffective assistance
of counsel. D. Ct. (CR 05-1796) Docket No. 53.
In his § 2255 motion, Mr. Armijo argued that (1) the district court lacked
subject matter jurisdiction because the statute conferring criminal jurisdiction
upon the district courts, 18 U.S.C. § 3231 was not validly enacted, and (2)
ineffective assistance of counsel based upon a failure to object to the
enhancement based upon a lack of constructive possession of the firearm. He also
contends that counsel was ineffective because she allowed the government to
breach the plea agreement (the enhancement was not discussed in the plea
agreement).
Mr. Armijo’s contention that § 3231 was not validly enacted is meritless.
See United States v. Risquet, 426 F. Supp. 2d 310, 311 (E.D. Pa. 2006). To
establish ineffective assistance of counsel, Mr. Armijo must demonstrate deficient
performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984).
He has done neither–the district court noted that it had addressed similar
arguments by counsel concerning the firearm enhancement. I R. Doc. 6 at 3; see
also D. Ct. (CR 05-1796) Docket No. 59 at 3-4 (objections to PSR on firearm
enhancement), No. 68 (sentencing memorandum arguing against enhancement).
Plainly, this was a credibility determination by the district court; counsel
adequately presented the issue and Defendant cannot show a reasonable
probability that an appeal on this issue might have succeeded. See United States
v. Sallis, 533 F.3d 1218, 1225-26 (10th Cir. 2008) (noting that government need
only prove a temporal and spatial relationship between the weapon, drug
trafficking activity and the defendant; thereafter the defendant must satisfy the
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district court that it is clearly improbable that the weapon was connected to the
offense). Finally, the plea agreement made no mention of the firearm
enhancement, but did acknowledge that the district court was required to consider
the advisory guidelines in sentencing and also provided that the government
reserved the right to make pertinent information known to the Probation Office.
D. Ct. (CR 05-1796) Docket No. 53 at 2-3. Under the circumstances, Mr.
Armijo’s claim concerning ineffective assistance of counsel based upon a breach
of the plea agreement is without merit.
We DENY IFP status, a COA, and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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