United States v. Angulo-Hernandez, Ju , 175 F. App'x 79 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 6, 2006
Decided April 7, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 05-1751
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division
v.
No. 04-CR-637-1
JUAN ANGULO-HERNANDEZ,
Defendant-Appellant. Elaine E. Bucklo,
Judge.
ORDER
Juan Angulo-Hernandez was convicted after a bench trial of three counts of
perjury in violation of 18 U.S.C. § 1623. The district court sentenced him at the
bottom of the recommended guidelines range to three, concurrent 97-month terms
of imprisonment to be followed by concurrent two-year terms of supervised release.
Appointed counsel filed a notice of appeal but now moves to withdraw because she
cannot discern a nonfrivolous basis for appeal. See Anders v. California, 386 U.S.
738 (1967). For his part, Angulo-Hernandez accepted our invitation to comment on
counsel’s motion. See Cir. R. 51(b). Because counsel’s supporting brief is facially
adequate, we limit our review to the potential issues identified by counsel and
Angulo-Hernandez. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997).
No. 05-1751 Page 2
Angulo-Hernandez was indicted for perjury after he testified at Fidel Garcia’s
drug trial. The grand jury alleged that his testimony at Garcia’s trial was patently
inconsistent with statements he made under oath when he pleaded guilty to
conspiring with Garcia and another codefendant to possess and distribute cocaine.
See 18 U.S.C. § 1623(c). Angulo-Hernandez opted for a bench trial on the perjury
charges but nonetheless admitted to making the inconsistent statements alleged in
the indictment. Specifically, he conceded under cross-examination that during the
plea colloquy on his drug charge he admitted to speaking with Garcia by phone and
ordering six kilograms of cocaine, agreeing to purchase the six kilograms from
Garcia for $20,000 each, and meeting with Garcia and the second codefendant prior
to delivering the cocaine. He also admitted that at Garcia’s trial over a year later
he had denied this very same conduct. Angulo-Hernandez explained at his perjury
trial that he did not understand the terms of his plea agreement in his drug case
and that his lawyer at the time had “coerced” him into making false statements
during the plea colloquy. He also insisted that, even though a Spanish-language
interpreter relayed the questions presented to him at his plea hearing, he did not
understand the questions. The district court found Angulo-Hernandez guilty on all
three perjury counts.
Counsel and Angulo-Hernandez first consider whether Angulo-Hernandez
might argue that the government’s evidence was insufficient to sustain his perjury
convictions. Counsel asserts that we would review any challenge to the sufficiency
of the evidence for plain error because Angulo-Hernandez’s trial counsel never
renewed his motion for judgment of acquittal at the close of the evidence or moved
for new trial on that basis, but a motion under Federal Rule of Criminal Procedure
29 for judgment of acquittal is not necessary in a bench trial to preserve an
appellate challenge to the sufficiency of the evidence. United States v. South, 28
F.3d 619, 627 (7th Cir. 1994); United States v. Atkinson, 990 F.2d 501, 503 (9th Cir.
1993) (en banc). Still, counsel’s error concerning the standard of review does not
defeat her analysis. In considering the sufficiency of evidence, we view the evidence
in the light most favorable to the government and will reject the challenge if “any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see United States
v. Carrillo, 435 F.3d 767, 775 (7th Cir. 2006). To prove perjury under § 1623, the
government had to show that Angulo-Hernandez made irreconcilably contradictory
declarations under oath, but did not have to prove which of the declarations was
false. See Dunn v. United States, 442 U.S. 100, 104 (1979); United States v.
Jaramillo, 69 F.3d 388, 390 (9th Cir. 1995); United States v. McAfee, 8 F.3d 1010,
1014 (5th Cir. 1993).
Angulo-Hernandez admitted making the inconsistent statements alleged in
the indictment, and he does not contend that what he said at his plea colloquy
about negotiating a drug deal with Garcia can be squared with his denial of that
No. 05-1751 Page 3
transaction when he testified at Garcia’s trial. Indeed, at his perjury trial,
Angulo-Hernandez insisted that what he said about the deal during his plea
colloquy was false, but he argues now that his statements from the colloquy cannot
“sustain the charge of perjury” because his attorney “coerced” him to make them.
The type of “coercion” Angulo-Hernandez describes, however, cannot serve as a
defense to a criminal charge. See United States v. Tokash, 282 F.3d 962, 969 (7th
Cir. 2002) (holding that defense of coercion requires evidence of imminent fear of
death or serious bodily harm and the absence of reasonable legal alternatives to
avoid the threat). And Angulo-Hernandez cannot otherwise challenge the
voluntariness of his guilty plea on his drug conviction here. We therefore agree
with counsel that any appeal on this basis would be frivolous.
Counsel and Angulo-Hernandez next consider whether Angulo-Hernandez
could challenge the reasonableness of his overall prison sentence. We have held
that a sentence within a properly calculated guideline range is presumptively
reasonable. United States v. Paulus, 419 F.3d 693, 700 (7th Cir. 2005); United
States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). Here the guidelines
calculation recommended by the probation officer and accepted by the court yielded
an imprisonment range of 97 to 121 months. In choosing to impose 97 months, the
district court first considered the factors in 18 U.S.C. § 3553(a), including the need
for punishment and deterrence, Angulo-Hernandez’s prior criminal conduct, and the
kind of sentences available. The district court then exercised its discretion to run
the first 73 months of the overall sentence concurrent with Angulo-Hernandez’s
undischarged term of imprisonment on the drug conviction, effectively reducing the
punishment for the perjury conviction to 24 months. See U.S.S.G. § 5G1.3(c). Thus
we agree with counsel that this potential claim would be frivolous because
Angulo-Hernandez cannot rebut the presumption of reasonableness. See Mykytiuk,
415 F.3d at 608.
Counsel also considers whether Angulo-Hernandez could argue that trial
counsel’s failure to file a post-trial motion challenging the sufficiency of the
evidence constituted ineffective assistance of counsel. Here again counsel starts
with the flawed premise that a motion for judgment of acquittal was necessary to
preserve a sufficiency argument for appeal, and since no motion was required, it
would be frivolous to label trial counsel deficient for not filing one. In addition, we
have often instructed that generally it is better to bring a claim of ineffective
assistance of counsel in a collateral proceeding under 28 U.S.C. § 2255 where the
record necessary to support the claim can be developed. E.g., United States v.
Rezin, 322 F.3d 443, 445 (7th Cir. 2003); see Massaro v. United States, 538 U.S. 500,
504-05 (2003). This case is no exception.
Finally, we have noticed one other potential issue that counsel and
Angulo-Hernandez fail to identify. The 97-month term of imprisonment imposed
No. 05-1751 Page 4
for each perjury count exceeds the statutory maximum of 60 months. See 18 U.S.C.
§ 1623(a). Angulo-Hernandez did not object to this discrepancy in the district court,
so any argument now would be reviewed only for plain error, see United States v.
Hernandez, 330 F.3d 964, 982 (7th Cir. 2003), and would be frivolous. When a
defendant is given concurrent prison terms on multiple counts, the fact that one or
more of those terms exceeds the statutory maximum does not constitute plain error
so long as the total imprisonment imposed does not exceed the aggregate maximum
for those counts. United States v. Gray, 332 F.3d 491, 493 (7th Cir. 2003);
Hernandez, 330 F.3d at 982-84. Although the statutory maximum on any one count
of perjury is five years, see 18 U.S.C. § 1623(a), the aggregate statutory maximum
for Angulo-Hernandez’s three perjury counts is 15 years, which is more than the 97
months he actually received for all three counts. Moreover, because the district
court ran the first 73 months of Angulo-Hernandez’s overall sentence concurrently
with his undischarged term of imprisonment on his drug conviction,
Angulo-Hernandez will effectively serve only 24 months or two years’ additional
imprisonment on the perjury charges, which is well below the statutory maximum
for any of the perjury counts. Thus he cannot show that his sentence affected the
fairness integrity, or public reputation of the proceedings on this basis.
For the foregoing reasons, we GRANT counsel’s motion to withdraw and
DISMISS the appeal.