United States v. Francisco Hernandez-Quijada ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 6 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10546
Plaintiff-Appellee, D.C. No.
2:15-cr-1037-PHX-GMS
v.
FRANCISCO ANIBAL HERNANDEZ-
QUIJADA, AKA Francisco Hernandez, MEMORANDUM*
AKA Francisco A. Hernandez, AKA
Francisco Anibal Hernandez, AKA
Francisco Hernandez Quijada, AKA
Francisco Hernandez-Quijada, AKA
Francisco Quijada,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Submitted September 13, 2017**
San Francisco, California
Before: SCHROEDER and TALLMAN, Circuit Judges, and WHALEY,***
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Robert H. Whaley, United States District Judge for the
Eastern District of Washington, sitting by designation.
District Judge.
Francisco Hernandez-Quijada appeals his sentence imposed following his
guilty plea to illegal reentry after deportation in violation of 8 U.S.C. § 1326. He
was sentenced to 46 months in prison on November 9, 2015. On appeal, Hernandez
brings an ineffective assistance of counsel (IAC) claim, arguing that his sentencing
counsel’s performance fell below an objective standard of reasonableness because
she failed to argue that Ariz. Rev. Stat. § 13-3408(A) is categorically overbroad
and indivisible with regard to its specific type of narcotic drug requirement, and
thus his prior conviction under that section did not qualify as a prior “drug
trafficking offense” under U.S.S.G. § 2L1.2(b)(1)(A); as a result, the district court
erroneously imposed a 16-level enhancement under the sentencing guidelines.
Hernandez further asserts that his waiver of the right to appeal any aspect of his
sentence does not apply here because the appeal is based on ineffective assistance
of counsel, which falls outside the scope of the appeal waiver and was expressly
reserved.
We decline to reach the merits of these claims.1 In the case at hand, the
current record is insufficiently developed to review the IAC claim. United States v.
Moreland, 622 F.3d 1147, 1157 (9th Cir. 2010) (“[A]s a general rule, we do not
1
Appellant’s motions to take judicial notice (Dkt. Nos. 61, 65) and Appellee’s
motion to take judicial notice (Dkt. No. 64) are DENIED AS MOOT.
2
review challenges to the effectiveness of defense counsel on direct appeal. Rather,
we prefer to review ineffective assistance of counsel claims in habeas corpus
proceedings under 28 U.S.C. § 2255.” (alteration in original) (internal quotation
marks and citation omitted)). There may have been strategic reasons for counsel’s
failure to argue that the Arizona statute was categorically overbroad and indivisible
regarding its narcotic drug requirement, especially given the law in effect at that
time, and development of further evidence is necessary to assess whether counsel
performed below the constitutionally required standard. See United States v.
Jeronimo, 398 F.3d 1149, 1156 (9th Cir. 2005), overruled on other grounds by
United States v. Jacobo-Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en banc).
Hernandez may raise his IAC argument on federal habeas procedure, through a
§ 2255 motion. United States v. Laughlin, 933 F.2d 786, 788–89 (9th Cir. 1991)
(“Challenge by way of a habeas corpus proceeding is preferable as it permits the
defendant to develop a record as to what counsel did, why it was done, and what, if
any, prejudice resulted.” (citation omitted)).
DISMISSED.
3