United States v. Saucedo ( 1998 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 97-40622
(Summary Calendar)
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN SAUCEDO,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(C-96-CR-280)
April 9, 1998
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Juan Saucedo appeals his guilty-plea conviction for possession
with intent to distribute of 90 kilograms of marijuana in violation
of 21 U.S.C. § 841(b)(1)(C). The Government has filed a motion to
dismiss the appeal for lack of jurisdiction, arguing that Saucedo’s
“motion for a new trial” was filed untimely and was not the proper
procedure for challenging a guilty plea. The Government further
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
argues that filing the motion did not toll the period for filing a
notice of appeal, thereby rendering Saucedo’s filing of his notice
of appeal untimely. Because Saucedo filed his motion within the
ten-day appeal period, we treat it as a motion for reconsideration
of the district court’s final judgment. See United States v.
Lewis, 921 F.2d 563, 564 (5th Cir. 1991). The district court
therefore erred in construing the motion as a 28 U.S.C. § 2255petition. As a motion for reconsideration extends the time for
filing a notice of appeal until the motion is denied, see id.,Saucedo’s notice of appeal was timely. The Government’s motion to
dismiss Saucedo’s appeal is DENIED.
Saucedo’s brief evinces the intent to appeal the district
court’s orders denying his motion for a new trial and his “motion
to strike proceedings.” See United States v. Sacerio, 952 F.2d
860, 863 n.1 (5th Cir. 1992); United States v. Ramirez, 932 F.2d
374, 375 (5th Cir. 1991). Therefore, this court has jurisdiction
to review the orders denying both motions.
Saucedo argues that his counsel was ineffective because he
failed to investigate the quantity of marijuana involved in the
offense. Saucedo allegedly told his counsel that he only
transported 120 pounds of marijuana, while the Government indicted
him for transporting approximately 200 pounds. He also argues that
his counsel failed to investigate inconsistencies in the amount of
marijuana in the Presentence Report. Saucedo further argues that
his guilty plea was involuntary because his counsel did not advise
him that the amount of marijuana could affect his sentence. Saucedo
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raised these claims below, and the record is sufficiently developed
for this court to consider them. See United States v. Gibson, 55
F.3d 173, 179 (5th Cir. 1995).
To prevail on his ineffective assistance of counsel claim,
Saucedo must establish: (1) that his counsel’s performance was
deficient in that it fell below an objective standard of
reasonableness; and (2) that the deficient performance prejudiced
his defense. Strickland v. Washington, 466 U.S. 688, 694, 104 S.
Ct. 2052, 2068, 2080 (1984). Saucedo failed to provide any
evidence to the district court or on appeal to support this claim,
other than his one conclusory statement.1 Indeed, he admits that
he did not know exactly how much marijuana he was
transporting))only that “they” told him that he would be carrying
120 pounds. Moreover, the government repeatedly weighed the
marijuana; any minor discrepancies in weight such as may have
existed would not have affected his classification under the
sentencing guidelines. Finally, the sentence Saucedo actually
received after downward adjustments and a further downward
1
Although the district court held a hearing on Saucedo’s
motion for new trial, inclement weather prevented Saucedo and his
new attorney from attending the hearing. The district court
nonetheless went forward with the hearing, allowing Saucedo’s
former attorney to testify in narrative form at the hearing.
Saucedo later made a “motion to strike proceedings” to have this
hearing stricken, which the district court denied. Although
Saucedo has also appealed the denial of the “motion to strike
proceedings,” we deny this motion because we can determine as a
matter of law without regard to evidence presented at this hearing
that his ineffective assistance of counsel claim is meritless. Cf.
United States v. Walker, 68 F.3d 931, 934 (5th Cir. 1995) (holding
that a district court does not need to hold an evidentiary hearing
on an ineffective assistance claim where the claim is meritless as
a matter of law).
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departure by the district court is within the range of possible
sentences Saucedo would have received had the court found him to
have possessed 120 pounds of marijuana. Thus, Saucedo has failed
to establish any prejudice, and we reject this claim.
To the extent Saucedo argues that his guilty plea was
involuntary because he was not advised of the possible sentence he
could receive, the record indicates that Saucedo’s guilty plea was
knowingly and voluntarily entered after the district court complied
with Fed. R. Civ. P. 11 by determining whether his plea was
coerced, and advising him of his constitutional rights, the nature
of the charges, the consequences of his guilty plea, and the
statutory maximum punishment. See United States v. Johnson, 1 F.3d
296, 298-300 (5th Cir. 1993) (en banc). We accordingly reject this
claim as well.
AFFIRMED; GOVERNMENT’S MOTION TO DISMISS APPEAL FOR LACK OF
JURISDICTION DENIED.
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