United States v. Vilarchao ( 1996 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-50284
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL VILARCHAO,
Defendant-Appellant.
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Appeal from the United States District Court for the
Western District of Texas
(SA-94-CA-571)
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April 30, 1996
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Daniel Vilarchao appeals from the district court's denial of
his motion to vacate, set aside, or correct his sentence pursuant
to 28 U.S.C. § 2255. Vilarchao argues that the district court
erred by denying him relief without conducting an evidentiary
hearing on the following ineffective assistance of counsel
allegations.
Vilarchao contends that counsel failed to properly prepare for
*
Pursuant to Local Rule 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opinion should not be published and is not precedent except under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 Local Rule 47.5.4.
trial. Vilarchao's claim affords him no relief because he has
failed to demonstrate that the alleged inadequate preparation
prejudiced him. Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir.
1994); United States v. Kaufman, 858 F.2d 994, 1006 (5th Cir.
1988), cert. denied, 493 U.S. 895, 110 S.Ct. 245 (1989).
Vilarchao next argues that counsel's failure to object to
testimony that he would kill people over the loss of 400 kilograms
constituted ineffective assistance. The Government correctly
points out that the testimony in question refers to "the Colombian"
and does not identify Vilarchao. Additionally, we note that the
presentence report identifies Vilarchao as a native of Cuba who has
resided in the United States since 1961. Vilarchao has not shown
that counsel's failure to object constituted unprofessional conduct
or prejudiced him.
Vilarchao argues that counsel failed to object to the
admission into evidence of the small amount of cocaine found in his
wallet. On Vilarchao's direct appeal, in the context of addressing
the claim that the district court erred in admitting testimony
regarding the cocaine found in his wallet, this Court described the
evidence of Vilarchao's guilt as overwhelming, even without the
challenged evidence. United States v. Vilarchao, No. 90-5640
(January 24, 1992). Additionally, the court below opined that the
evidence at trial established that Vilarchao was responsible for
smuggling enormous amounts of cocaine into the United States. As
such, we agree with the district court's conclusion that Vilarchao
could not demonstrate prejudice on the basis of such a small amount
of cocaine.
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Vilarchao also argues that counsel erred in using the term
"godfather" in her closing argument because it allowed the
prosecutor to "paint a picture" of him as the "godfather" in this
case during closing argument. As the district court stated, "[i]t
is clear that trial counsel's reference to the nonmovant as a
godfather to children was an attempt to show him in a parental and
caring light." Once again, because Vilarchao has failed to show
that the prosecutor's closing argument prejudiced him, this claim
is without merit.
Accordingly, Vilarchao's allegations did not warrant § 2255
relief, and the district court did not err in denying relief
without an evidentiary hearing. See United States v. Drummond, 910
F.2d 284, 285 (5th Cir. 1990), cert. denied, 498 U.S. 1104, 111
S.Ct. 1006 (1991).
AFFIRMED.
3