United States v. Vince Cruz ( 2011 )

FILED
NOT FOR PUBLICATION MAR 14 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10237
Plaintiff - Appellee, D.C. No. 1:04-cr-00053-FTG
v.
MEMORANDUM *
VINCE LUIS HOCOG CRUZ,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Guam
Frances Tydingco-Gatewood, Chief Judge, Presiding
Submitted March 8, 2011 **
Before: FARRIS, LEAVY, and BYBEE, Circuit Judges.
Vince Luis Hocog Cruz appeals from his jury-trial conviction and 130-
month sentence imposed for possession of methamphetamine hydrochloride with
intent to distribute, in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Cruz contends that counsel was ineffective for failing to object to hearsay
statements introduced at trial. We decline to address this claim on direct appeal as
the record is insufficiently developed, and Cruz’s legal representation was not so
inadequate that it obviously denied the Sixth Amendment right to counsel. See
United States v. Ross, 206 F.3d 896, 900 (9th Cir. 2000).
Cruz also contends that the district court erred because its Guidelines
calculation was based upon the erroneous conclusion that the jury determined that
he was responsible for 31.9 grams of methamphetamine hydrochloride. Although
the district court erred by instructing the jury that the government was not required
to prove the amount or quantity of methamphetamine hydrocholoride; the error
was harmless beyond a reasonable doubt because the overwhelming and
uncontested evidence indicated that Cruz was in possession of 31.9 grams of the
substance. See United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1197-98 (9th
Cir. 2000) (en banc). Accordingly, the district court did not procedurally err by
improperly calculating the Guidelines range. See Gall v. United States, 552 U.S.
38, 51 (2007).
AFFIRMED.
2 10-10237