United States v. Roman ( 1998 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 7 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-1472
(D.C. No. 97-CR-71-D)
MAURICIO ROMAN, (D. Colo.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY , BARRETT , and HENRY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Defendant Mauricio Romano pled guilty to one count of conspiracy to
possess and distribute 142 grams of cocaine in violation of 21 U.S.C. § 841(a)(1)
and 21 U.S.C. § 846. In this direct criminal appeal, defendant argues that the
district court abused its discretion in not allowing him additional time to object to
the presentencing report (PSR) and that his defense counsel provided him
ineffective assistance at sentencing. We find no error.
Defendant was named in two counts of a six-count indictment related to the
distribution of cocaine. Defendant entered into a plea agreement with the
government under Fed. R. Crim. P. 11(e)(1)(C), whereby he agreed to plead guilty
to count four and cooperate with the government and the government agreed to
dismiss count five and recommend a thirteen-month sentence. The plea
agreement did not consider defendant’s alleged participation in count five as
relevant conduct for sentencing purposes and made the assumption that
defendant’s criminal history category was level I. The plea agreement stated that
the recommended sentence and the sentencing guideline ranges resulting from the
plea stipulations were not binding on the sentencing court.
The PSR recommended a sixty-month sentence. The PSR did consider
defendant’s participation in count five as relevant conduct, pursuant to
U.S.S.G. § 1B1.3, and applied a criminal history category of level II because
defendant was convicted of a firearm felony that was not considered in the plea
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agreement. Defendant’s counsel did file timely written objections to the PSR, but
he objected only to minor, typographical errors, not to the PSR’s sentencing
guideline calculations or recommended sentence.
At the initial sentencing hearing, defendant’s counsel expressly stated his
agreement with the sentencing guideline calculations in the PSR. However, when
the district court stated its intent to reject the sentence stipulated in the plea
agreement, defendant’s counsel raised, for the first time, objections to some of the
PSR’s factual assertions, particularly with respect to the conduct alleged in count
five, which the PSR treated as relevant conduct for sentencing purposes.
Defendant’s counsel conceded that defendant’s actual criminal history category
was level II, rather than level I.
Defense counsel said he had not previously objected to the PSR’s
sentencing recommendation because he had reached a stipulated sentence plea
agreement with the government. The court said it would not take new objections
to the PSR because objections were required to be filed prior to sentencing. The
district court allowed defendant an opportunity to withdraw his plea agreement.
Defendant declined to do so, and the court sentenced him to twenty-four months’
imprisonment. This sentence was based on inclusion of count five as relevant
conduct, but also included a downward departure for defendant’s substantial
assistance to the government.
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I.
Defendant first contends that the district court abused its discretion when it
refused to hear defense counsel’s objections to the PSR at the sentencing hearing.
Fed. R. Crim. P. 32(b)(6)(D) states that the sentencing court may allow a new
objection to be raised at any time before imposing sentence, for good cause
shown. The district court is not required to hear a parties’ new objection to the
presentence report at sentencing. See United States v. Hardwell , 80 F.3d 1471,
1500 (10th Cir. 1996). Its decision whether to hear new objections raised at a
sentencing hearing is a matter left to its discretion. See United States v.
Archuleta , 128 F.3d 1446, 1452 n.12 (10th Cir. 1997).
Here, defendant never asserted good cause existed to warrant the district
court’s acceptance of new objections raised for the first time at sentencing.
Defendant’s counsel stated he did not file written objections to the PSR’s
sentencing recommendation because he had reached a plea agreement with the
government, implying his belief that the sentence agreed to in the plea agreement
was binding on the court. This notion is belied by the plea agreement itself,
which expressly states that “the defendant [is] aware that the guideline ranges
resulting from these stipulations are not binding on the Court, and the Court is
free . . . to reach its own findings of facts and factors which are relevant to
sentencing, accepting or rejecting the parties’ positions herein.” R. plea
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agreement at 4. See also U.S.S.G. § 6B1.4(d) (sentencing court is not bound by
stipulation of facts relevant to sentencing, but may, with aid of presentence
report, determine the facts relevant to sentencing). In any event, defendant’s
counsel did not assert that his mistaken belief constituted good cause, and we do
not find that the district court abused its discretion by declining to accept
defendant’s objections to the PSR raised for first time at the sentencing hearing.
See United States v. Jones , 70 F.3d 1009, 1010 (8th Cir. 1995).
II.
Defendant also argues that his defense counsel provided ineffective
assistance of counsel by failing to object to the PSR’s sentencing guideline
recommendation. Ordinarily, ineffective assistance of counsel claims asserted on
direct appeal are “presumptively dismissible.” See United States v. Galloway , 56
F.3d 1239, 1240 (10th Cir. 1995) (en banc). Nonetheless, defendant has new
counsel and because the record is sufficient to permit full review of the alleged
ineffectiveness, we deem this claim to be one of the “rare . . . claims which are
fully developed in the record [and which thus] may be brought . . . on direct
appeal. Id. at 1242; United States v. Sanchez , Nos. 97-1219 & 97-1233, 1998
WL 324322, at *2 (10th Cir. June 11, 1998).
To establish ineffective assistance of counsel, defendant must show that his
counsel’s performance fell below an objective standard of reasonableness, and
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that counsel’s deficient performance was prejudicial. See Strickland v.
Washington , 466 U.S. 668, 687 (1984). Under the second prong of Strickland , to
demonstrate prejudice in the context of failing to object to a presentence report,
defendant must establish either that counsel’s performance rendered the
proceedings “fundamentally unfair or unreliable” or that the deficient
performance resulted in a “significantly greater sentence.” United States v.
Kissick , 69 F.3d 1048, 1055, 1056 (10th Cir. 1995). “‘[A] court may not set aside
a conviction or a sentence solely because the outcome would have been different
absent counsel’s deficient performance.’” Kissick , 69 F.3d at 1055 (quoting
Lockhart v. Fretwell , 506 U.S. 364, 369 (1993)).
The plea agreement calculated defendant’s applicable sentencing range as
twelve to eighteen months, and the government recommended a thirteen-month
sentence. At the change of plea hearing, prior to the preparation of the PSR, the
district court indicated its intention to reject the thirteen-month recommendation
and sentence defendant to eighteen months. R. Vol. 2, at 25. Defendant’s
subsequent concession that his actual criminal history category was level II
increased his applicable sentence from the twelve- to eighteen-month range
calculated in the plea agreement, to a fifteen- to twenty-one month range. See
U.S.S.G. ch. 5, pt. A. Despite defendant’s counsel’s failure to file a written
objection to the PSR’s inclusion of count five as relevant conduct, it is clear that
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the district court was aware of the objections counsel asserted at the sentencing
hearing because, contrary to the PSR’s recommendation that defendant receive a
sixty-month sentence, the district court sentenced defendant to only twenty-four
months.
Thus, the sentence defendant received is only six months higher than the
sentence the district court indicated it would give before the PSR was prepared,
and only a few months higher than the sentencing range applicable to defendant
considering his actual criminal history category of level II, but excluding count
five as relevant conduct. Accordingly, defendant’s ineffective assistance of
counsel claim fails because even assuming that his counsel’s performance fell
below an objectively reasonable standard, defendant has failed to demonstrate that
his counsel’s performance rendered the sentencing proceeding fundamentally
unfair or unreliable, or resulted in a significantly greater sentence.
The judgment of the United States District Court for the District of
Colorado is AFFIRMED.
Entered for the Court
Robert H. Henry
Circuit Judge
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