United States v. Rivas-Cristales ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-3835
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Carlos Alberto Rivas-Cristales, *
* [UNPUBLISHED]
Appellant. *
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Submitted: May 11, 2000
Filed: May 19, 2000
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Before LOKEN, FAGG, and HANSEN, Circuit Judges.
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PER CURIAM.
A jury found Carlos Alberto Rivas-Cristales guilty of conspiring to distribute
methamphetamine, attempting to possess with intent to distribute methamphetamine,
and distributing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846.
The district court1 sentenced him to 188 months imprisonment and 5 years supervised
release. On appeal, Rivas-Cristales argues (1) the district court erred in denying his
1
The HONORABLE R.E. LONGSTAFF, United States District Judge for the
Southern District of Iowa.
motion in limine to exclude his custodial statements and consent to search, because at
the time of his arrest he was not advised of his right, as an El Salvadoran national, to
contact his consul, see Vienna Convention on Consular Relations, April 24, 1963, art.
36, 21 U.S.T. 77, T.I.A.S. No. 6820; (2) the district court erred in applying an
obstruction-of-justice enhancement for giving false testimony; and (3) his counsel was
ineffective for failing to request safety-valve relief under U.S. Sentencing Guidelines
Manual § 5C1.2. We affirm.
First, we conclude that the district court did not abuse its discretion in denying
the motion in limine. See United States v. Whitehead, 176 F.3d 1030, 1036 (8th Cir.
1999) (standard of review). Assuming without deciding that Rivas-Cristales could
assert a Vienna Convention violation and that suppression would be an available
remedy, we agree with the district court that Rivas-Cristales did not show prejudice:
he did not allege he would have refused to make any statements or sign the search-
consent form had he spoken to his consulate, and--as the district court found--he
understood and voluntarily waived his right to remain silent. See United States v.
Esparza-Ponce, 193 F.3d 1133, 1138-39 (9th Cir. 1999) (defendant must demonstrate
prejudice by showing he did not know of his right to contact consul under Vienna
Convention, he would have availed himself of right had he known it, and consular
contact likely would have assisted him).
Second, we conclude that the district court did not clearly err in finding Rivas-
Cristales had lied while testifying to gain the suppression of evidence, and that the court
thus properly applied the obstruction-of-justice enhancement. See United States v.
Dunnigan, 507 U.S. 87, 95 (1993) (district court must review evidence and make
finding of obstruction of justice that encompasses factual predicates for finding of
perjury); United States v. Molina, 172 F.3d 1048, 1058 (8th Cir.), cert. denied, 120 S.
Ct. 221 (1999) (standard of review); United States v. Ogbeifun, 949 F.2d 1013, 1013-
14 (8th Cir. 1991) (upholding obstruction-of-justice enhancement based on trial judge’s
express finding from personal observation that defendant had lied while testifying).
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Last, we decline to consider Rivas-Cristales’s ineffective-assistance argument,
as the record is insufficiently developed to show whether he qualified for safety-valve
relief. See United States v. Martin, 62 F.3d 1009, 1012 (8th Cir. 1995) (ineffective-
assistance claims are ordinarily reserved for collateral attack, but appellate court will
consider such claims where record is established and there is no need to develop
additional facts), cert. denied, 116 S. Ct. 1556 (1996).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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