United States v. Marquez ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_________________________
No. 95-40165
(Summary Calendar)
_________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS ARNULFO MARQUEZ,
Defendant-Appellant.
____________________________________________________
Appeal from United States District Court
for the Southern District of Texas
(L-94-CV-156(L-91-CR-23))
__________________________________________________
November 17, 1995
Before JOLLY, JONES, and STEWART, Circuit Judges.
PER CURIAM:*
Defendant, Carlos Arnulfo Marquez, appeals his sentence of 80
months imprisonment, five years of supervised relief, and $7,500
fine on the ground that he received ineffective assistance of
counsel. For the following reasons, we affirm the district court’s
sentence.
*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
FACTS
A jury found Carlos Arnulfo Marquez guilty of possession with
intent to distribute approximately 404 pounds of marihuana in
violation of 21 U.S.C. § 841(a)(1). The district court sentenced
Marquez to 80 months of imprisonment followed by a five-year term
of supervised release and a $7,500 fine. This court affirmed
Marquez's conviction and sentence.
Marquez then filed this 28 U.S.C. § 2255 motion, alleging that
he received ineffective assistance of counsel at the trial level.
Marquez alleged that his trial attorneys were ineffective for:
1) failing to object and move for a mistrial or a curative
instruction after the Government made inflammatory comments
attacking Marquez's character; 2) refusing to allow Marquez to
testify; 3) refusing to call two potentially exculpatory witnesses;
4) failing to advise Marquez of a plea offer by the Government; and
5) failing to argue that Marquez was entitled to a "downward
departure" based on Marquez's allegation that he was a minimal
participant. Marquez also alleged that the trial court erred in
admitting perjured testimony at trial.
Following an evidentiary hearing, the district court denied
Marquez's § 2255 motion and allowed Marquez to proceed in forma
pauperis (IFP) on appeal.
DISCUSSION
Marquez argues that his trial attorneys were ineffective
for: 1) refusing to allow him to testify; 2) refusing to call
two potentially exculpatory witnesses; 3) failing to advise him
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of a plea offer by the Government; and 4) failing to argue that
Marquez was entitled to a downward departure based on his
allegation that he was a minimal participant. Marquez also
generally contends that the district court's factual findings and
legal conclusions were not supported by the evidence presented at
the evidentiary hearing.1
A. INEFFECTIVE ASSISTANCE OF COUNSEL
This court reviews findings of fact for clear error. See
United States v. Gipson, 985 F.2d 212, 214 (5th Cir. 1993). A
factual finding will be determined to be clearly erroneous only if
it leaves the court with the definite and firm conviction that a
mistake has been made. See United States v. Scott, 987 F.2d 261,
264 (5th Cir. 1993). This court defers to the trier of fact in
resolving conflicts requiring credibility determinations. See
United States v. Samples, 897 F.2d 193, 198 (5th Cir. 1990). This
court reviews mixed questions of fact and law, such as whether
counsel rendered effective assistance of counsel, de novo. See
United States v. Faubion, 19 F.3d 226, 228 (5th Cir. 1994).
1
Marquez does not argue the alleged perjured testimony at
trial and whether his trial counsel erred in failing to request a
mistrial and curative jury instructions for the Government's
alleged inflammatory remarks. Because Marquez has abandoned these
issues, this court need not address them. See Brinkmann v. Abner,
813 F.2d 744, 748 (5th Cir. 1987). Further, in arguing in his reply
brief that his trial attorneys did not call two potentially
exculpatory witnesses, Marquez states that his counsel failed to
investigate his case. To the extent that Marquez attempts to raise
a new issue of ineffectiveness of counsel, this court bars Marquez
from raising new issues in his reply brief. See United States v.
Heacock, 31 F.3d 249, 259 n.18 (5th Cir. 1994) (any issue raised
for the first time in a reply
brief is waived).
3
Under the two-prong test enunciated in Strickland v.
Washington, 466 U.S. 668, 687 (1984), Marquez must show that
counsel's assistance was deficient and that the deficiency
prejudiced him. In evaluating the first component, judicial
scrutiny of counsel's performance must be highly deferential, and
courts must indulge in a strong presumption that counsel's conduct
falls within the wide range of reasonable professional assistance.
Id. at 689. Marquez must demonstrate prejudice by showing that his
attorney's errors were so serious that they rendered the
proceedings unfair or the result unreliable. See Lockhart v.
Fretwell, 113 S.Ct. 838, 844 (1993).
1. Refusing to allow Marquez to testify
Marquez asserts that his trial attorneys refused to allow him
to testify on his own behalf. The district court rejected
Marquez's contention that he was denied his right to testify and
found that the testimony of Pena and Almaraz was more credible and
convincing than Marquez's testimony. The district court also found
that Marquez was not forbidden or prevented from testifying, that
the attorneys merely expressed their opinions regarding Marquez
testifying, and that Marquez accepted those opinions. Id. The
district court found that the attorneys' advice was not
unreasonable. Id. at 77-78.
Marquez does not argue that these findings were clearly
erroneous. Instead, he argues the weight and credibility of the
evidence by contending that the testimony of his former trial
attorney, David Almaraz, was more credible than the testimony of
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his other trial attorney, Leonel Pena, who stated that Pena
informed Marquez of his absolute right to testify at trial.
Both of Marquez's trial attorneys testified that they did not
recall Marquez asking to testify, but that they would have allowed
Marquez to testify if he had communicated a desire to do so, even
if they believed that it would not help Marquez's case. Marquez
testified that Pena refused his repeated requests to testify.
The district court chose to credit the lawyers' testimonies
over Marquez's, which is a determination that is entitled to
deference. Samples, 897 F.2d at 198. Marquez does not present
anything on appeal which would make this court question such
determinations. Therefore, the district court did not clearly err
in its finding that Marquez was not denied the right to testify at
his trial, and the court did not err in its conclusion that Marquez
did not receive ineffective assistance of counsel as to this issue.
See Scott, 987 F.2d at 264; Faubion, 19 F.3d at 228.
2. Refusing to call two potentially exculpatory witnesses
Marquez contends that his trial attorneys were ineffective by
refusing to call his ex-wife, Rosalinda Marquez, and Mrs. Lutz, the
wife of acquaintance James Lutz, as exculpatory witnesses. Marquez
asserts that both women would have testified that he was in the
shower when his truck was being loaded with contraband and that he
never checked the load. Marquez argues the weight and credibility
of the hearing testimony by contending that Rosalinda did not
testify at the hearing as predicted.
Marquez also contends that the district court erred in
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admitting the testimony as it was testimony regarding privileged
communication between a husband and his wife. Marquez suggests for
the first time in his reply brief that Rosalinda gave false
testimony at the hearing on the advice of Pena.
The district court found that Marquez conceded that neither
woman was present when Alfonso supposedly propositioned Marquez and
that Rosalinda testified that she was not present when any stranger
approached Marquez. The district court also determined that the
attorneys' belief that Mrs. Lutz' testimony would either be
cumulative or add nothing was a reasonable judgment. The district
court found no merit in Marquez's contention that there was
ineffective assistance of counsel in not calling the two women to
testify.
Before hearing Rosalinda's testimony, Marquez's attorney at
the evidentiary hearing objected to the proposed testimony as
violating the privilege between husband and wife, considering that
Rosalinda was Marquez's husband at the time Marquez was arrested
and tried. The court overruled the objection and stated that it
did not believe that there was to be any questions regarding any
privileged communication between Marquez and Rosalinda, but whether
Rosalinda was at the meeting between Marquez and Alfonso and
whether she was willing to testify.
Rosalinda testified at the evidentiary hearing that she was
present at the truck stop with Marquez, but that she did not see
anyone approach Marquez, as she had taken the dog to the vet at the
time.
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Marquez testified that the two women saw the man that
approached him, even though neither of the women knew what was
said. Marquez admitted that he told law enforcement officials that
Rosalinda probably did not hear the conversation. Primo Guzman,
the agent on Marquez's case, testified that Marquez informed him
that Rosalinda had no knowledge of the marihuana that was found in
the truck, and that she never saw anyone talking to him, and that
Marquez did not mention any involvement of either Mr. or Mrs. Lutz.
Both attorneys testified that Rosalinda's testimony would not
have added to the defense. Pena also testified that he did not
believe Mrs. Lutz's testimony would have added to the case, and
Almaraz stated that he did not recall Mrs. Lutz's presence in the
events.
The district court's determination that Rosalinda gave
credible testimony is entitled to deference. Samples, 897 F.2d at
198. Marquez's own testimony indicates that Rosalinda was not
present during his conversation with Alfonso. Marquez's contention
regarding the district court's allowance of Rosalinda's testimony
in spite of the marital privilege fails as Rosalinda did not
testify as to any conversations she had with Marquez during her
marriage to him. Nothing in the record or presented on appeal
demonstrates that the district court clearly erred in its fact
findings or erred in its conclusion that Marquez did not receive
ineffective assistance of counsel as to this issue. See Scott, 987
F.2d at 264; Faubion, 19 F.3d at 228.
3. Failing to advise Marquez of a plea offer by the
Government
7
Marquez contends that his trial attorneys did not advise him
of a Government plea agreement offer which would have had him serve
only five years.2 The Government asserts that the record
affirmatively reflects that counsel advised Marquez of the plea
offer and that Marquez rejected it.
The district court found that Marquez knew that he could
either plead guilty with a recommended 60-month sentence or he
could go to trial and take his chances. The court further found
that Marquez maintained his innocence and opted to go to trial.
Id. The district court determined that Marquez's trial attorneys
did not render deficient performance in this area.
Almaraz testified that he related to Marquez that the
Government was willing to plea bargain to 60 months, the mandatory
minimum sentence, and that he advised Marquez that if he went to
trial and was found guilty, Marquez would probably be sentenced to
80 to 90 months of imprisonment. Almaraz stated that it was his
recollection that Marquez turned down the offer and wanted to go to
trial. Pena also stated that it was his advice to Marquez not to
accept a plea bargain if Marquez insisted that he was innocent.
Pena testified that Marquez never told him to plea bargain, but
that if Marquez had, Pena would have done so.
Marquez testified that he informed Almaraz that the Government
2
Marquez raised, but did not argue, the plea-agreement issue
in his appellate brief. Normally, such an unargued issue would be
considered abandoned. Brinkmann. However, the Government
addressed the issue in its brief, and Marquez responded to the
Government's argument in his reply brief. Therefore, the court may
address the issue.
8
had already offered Marquez a 60-month plea bargain. Marquez also
testified that if he had been informed that he was not going to do
less than five years, he would have taken the 60-month offer.
However, Marquez admitted that he never said he wanted to take the
Government's offer and that, when Pena stated that it would be
better to go to trial, Marquez told him to go ahead because Marquez
believed in his own innocence.
Marquez's own testimony demonstrates that he knew of the plea
bargain offer, but that he wanted to go to trial because he
believed in his innocence. Marquez has not shown that the district
court clearly erred in finding that Marquez knew about the plea
agreement and yet decided to go to trial. See Scott, 987 F.2d at
264. This evidence also supports the district court's conclusion
that Marquez's attorneys were not deficient in this respect.
Faubion, 19 F.3d at 228. This issue is without merit.
4. Failing to argue that Marquez was entitled to a "downward
departure" based on Marquez's allegation that he was a
minimal participant
Marquez argues that his trial attorneys were ineffective by
failing to argue at sentencing that he was only a minimal
participant, which would have resulted in Marquez's receipt of a
downward "departure." Marquez contends that the district court
erred in determining that Marquez's protestations of innocence
foreclosed consideration for an adjustment in the offense role at
sentencing. Marquez asserts that once he was convicted, "he
nevertheless enjoyed the privilege[] of seeking" an adjustment as
his status as an individual who had been recruited for a single
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smuggling transaction involving a small amount of drugs was a
situation considered by the guidelines to be an appropriate one for
an adjustment under U.S.S.G. § 3B1.2.
In the context of noncapital sentencing, this court must
determine whether there is a probability that, but for counsel's
deficiency, the defendant's sentence would have been significantly
less harsh. United States v. Acklen, 47 F.3d 739, 742 (5th Cir.
1995).
The commentary of U.S.S.G. § 3B1.2 considers a downward
adjustment for a minimal participant would be appropriate for an
individual who was recruited as a courier for a single smuggling
transaction involving a small amount of drugs. § 3B1.2, comment.
(n. 2). Marquez cites this provision to support his argument that
his attorneys were ineffective for failing to argue that Marquez
was a minimal participant.
Although the district court considered this issue to be a
sentencing issue, which could not be raised in a § 2255 motion, the
district court also found that any argument of minimal
participation would have contradicted Marquez's contention of
innocence and that, furthermore, there was no credible evidence of
any other person involved. Therefore, the court concluded that it
would not have granted Marquez a sentence reduction under these
circumstances.
Pena testified that his memory was unclear but that he
believed that if he had not asserted that Marquez was a minimal
participant it was because Marquez totally denied any knowledge of
10
the marihuana. Neither Pena nor Almaraz ever raised the argument
that Marquez should have been entitled to an adjustment as a
minimal participant.
Marquez's assertion fails. Marquez maintained his innocence
in presentence investigation interviews and stated that he was
approached by someone who offered him $200 to transport some
unknown substance. The jury found Marquez guilty of possession of
marihuana with intent to distribute. Whether the jury believed
that Marquez was recruited by a third person or that he obtained
the marihuana himself is not reflected in the verdict. Marquez
possessed 404 pounds of marihuana, which is not a small amount.
These factors support the district court's conclusion that the
court would not have given Marquez a reduction in sentence for
minimal participation. Therefore, even if Marquez's attorneys
could be considered deficient for failing to raise this issue at
sentencing, Marquez cannot show prejudice by demonstrating that
there was a probability that, but for counsel's deficiency,
Marquez's sentence would have been significantly less harsh. See
Acklen, 47 F.3d at 742.
CONCLUSION
For the foregoing reasons, we AFFIRM the sentence imposed by
the district court.
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