United States v. Gutierrez ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40155
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
versus
RICARDO JOEL GUTIERREZ, also known as "Rickey" Gutierrez
Defendant-Appellant
Appeal from the United States District Court
For the Southern District of Texas
USDC No. C-98-CR-283-5
June 15, 2000
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Ricardo Joel Gutierrez appeals his guilty-plea conviction and
sentence for aiding and abetting to possess with intent to
distribute approximately ninety kilograms of marijuana.
Gutierrez asserts that he requested the presence of counsel at
his presentence interview, that his request was denied, and that he
was harmed thereby. "On request, the defendant's counsel is
entitled to notice and a reasonable opportunity to attend any
*
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this opinion should not be published and is not precedent except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.
interview of the defendant by a probation officer in the course of
a presentence investigation." Fed. R. Crim. P. 32(b)(2).
Gutierrez claims that he was harmed by the to failure give his
attorney notice and an opportunity to attend the presentence
interview, because he did not understand that the presentence
report held him responsible for a larger amount of marijuana
attributable to counts that were dismissed.
Gutierrez did not object to the presentence report. When a
defendant fails to object to the presentence report we review his
claims on appeal for plain error. See United States v. Dean, 59
F.3d 1479, 1494 (5th Cir. 1995). The record does not show that
Gutierrez requested his attorney's presence at the interview or
that his attorney asked for notice and an opportunity to be
present. Furthermore, Gutierrez does not show that he failed to
understand the presentence report, so he cannot show that his
counsel's absence affected his substantial rights. At his
sentencing hearing, Gutierrez stated that he had read the
presentence report and discussed it with his counsel, who answered
all his questions. Gutierrez shows neither a violation of Rule
32(b) nor harm resulting thereby.
Gutierrez argues that the district court erred in accepting
the presentence report's finding him responsible for 680 kilograms
of marijuana rather than 90 kilograms. The 90 kilograms were
attributable to the count to which he pleaded guilty, and the rest
2
were attributable to dismissed counts. The presentence report
states that Gutierrez said that he hired others to transport
marijuana on the same date as the date on which he transported the
marijuana for which he pleaded guilty. Relevant conduct includes
conduct that was "part of the same course of conduct or common
scheme or plan as the offense of the conviction." U.S.S.G. §
1B1.3(a)(2). Gutierrez now objects to the presentencing report's
treating the fact that he hired persons to transport marijuana on
the date of the offense to which he pleaded guilty as relevant
conduct.
Since he failed to object to the presentencing report we must
review his claim for plain error. See United States v. Dean, 59
F.3d at 1494. Plain error is error that is obvious and affects the
complaining party's substantial rights. See United States v.
Angeles-Mascote, 206 F.3d 529, 530 (5th Cir. 2000). However,
"[q]uestions of fact capable of resolution by the district court
upon proper objection at sentencing can never constitute plain
error." United States v. McCaskey, 9 F.3d 368, 376 (5th Cir.
1993)(quoting United States v. Lopez, 923 F.2d 47, 50 (5th Cir.
1991)(alteration in original). The factual issue Gutierrez raises
on appeal cannot be plain error.
Finally, Gutierrez asserts that he was denied effective
assistance of counsel because his attorney failed to object to the
presentence report. We review a claim of ineffective assistance of
3
counsel on direct appeal only where the record allows to evaluate
the merits of the claim. See United States v. Glinsey, 209 F.3d
386, 392 (5th Cir. 2000). The record does not enable us to
evaluate the merits of this claim.
AFFIRMED.
4