J Rodriguez-Calderon v. United States ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-1661
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Jorge Rodriguez-Calderon, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
United States of America, * [UNPUBLISHED]
*
Appellee. *
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Submitted: March 31, 1997
Filed: April 4, 1997
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Before BOWMAN, WOLLMAN, and BEAM, Circuit Judges.
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PER CURIAM.
After a jury trial, Jorge Rodriguez-Calderon was convicted of
conspiring to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A)(ii), and 846, and money laundering, in violation of 18 U.S.C.
§ 1956(a)(1)(A)(I)(2). He received concurrent prison sentences of 262
months on the conspiracy count and 240 months on the money-laundering
count, to be followed by 5 years of supervised release. We affirmed the
sentences on direct appeal. See United States v. Ortiz-Martinez, 1 F.3d
662, 670, 675-78 (8th Cir.), cert. denied, 510 U.S. 936 (1993). Rodriguez
then
filed this section 2255 motion. The district court1 denied the motion, and
Rodriguez appeals. We affirm.
Rodriguez claimed in his section 2255 motion that the district court
violated his due process rights and Federal Rule of Criminal Procedure 43
when--during a side-bar conference while Rodriguez was outside the
courtroom--the court replaced with an alternate a juror who was
experiencing back problems. He also claimed that the district court
violated Federal Rule of Criminal Procedure 32 by failing to make factual
findings on disputed sentencing issues; he maintained that the error was
aggravated because the presentence report (PSR) was based on extensive, ex
parte communications between the prosecution and the probation officer, in
violation of his due process rights. We agree with the district court that
these claims are procedurally barred, as Rodriguez failed to raise them on
direct appeal. See Ramey v. United States, 8 F.3d 1313, 1314 (8th Cir.
1993) (per curiam).
We reject Rodriguez's related claims that counsel was ineffective for
failing to object to the juror replacement, the ex parte information, and
the district court's failure to make factual findings on his objections.
See Strickland v. Washington, 466 U.S. 668, 694 (1984) (ineffective-
assistance standard). The juror was replaced with an alternate for a
legitimate reason, following discussions during which defense counsel was
present. United States v. Krout, 56 F.3d 643, 647 (5th Cir. 1995), cert.
denied, 116 S. Ct. 782 (1996); United States v. Brown, 571 F.2d 980, 986-87
(6th Cir. 1978). As to the alleged ex-parte communications, Rodriguez does
not explain specifically what information counsel should have objected to,
or how counsel's failure to object
1
The Honorable Jean C. Hamilton, Chief Judge, United States
District Court for the Eastern District of Missouri.
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prejudiced him. Moreover, communications between the prosecution and the
probation office are not impermissible. See Fed. R. Crim. P. 32(b)(6)(B)
(parties may object to PSR); cf. United States v. Johnson, 935 F.2d 47, 49-
50 (4th Cir.) (probation officer is neutral, information-gathering agent
of court; ex parte communications between court and probation officer
permissible), cert. denied, 502 U.S. 991 (1991). Finally, any Rule 32
objection by counsel would have been useless, because the record shows that
Rodriguez did not object to any facts in the PSR; rather, he objected only
that the facts did not warrant a role-in-the-offense increase in his
sentence and instead warranted a minimal-participant decrease--objections
the sentencing court overruled. See United States v. Cureton, 89 F.3d 469,
473-74 (7th Cir. 1996). Thus, counsel's alleged ineffective assistance
cannot constitute cause to excuse Rodriguez's failure to raise the
underlying substantive issues on direct appeal.
Rodriguez also claimed that Sentencing Guideline Amendments 439 and
503, both of which became effective after he was sentenced, applied
retroactively to reduce his sentence. We agree with the district court
that this claim is not properly raised in a section 2255 proceeding. See
Auman v. United States, 67 F.3d 157, 161 (8th Cir. 1995) (ordinary
questions of Guidelines interpretation falling short of miscarriage of
justice are not cognizable in section 2255 proceeding); Grant v. United
States, 72 F.3d 503, 506 (6th Cir. 1996) (claim for retroactive application
of Amendment 439 "falls far short" of being cognizable in 2255 motion).
The judgment is affirmed.
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A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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