United States v. Rodriguez-Garcia

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 11 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4234
(D.C. No. 2:01-CV-759-K
FLORENTINO RODRIGUEZ- & 2:00-CR-262-K)
GARCIA, (D. Utah)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before EBEL , HENRY , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Florentino Rodriguez-Garcia, a federal prisoner proceeding pro se, appeals
from the district court’s order denying his motion to vacate, set aside, or correct
his sentence filed pursuant to 28 U.S.C. § 2255. This court granted a certificate
of appealability (COA) on the following issue: whether his trial counsel was
constitutionally ineffective for failing to move for a downward departure based on
Mr. Rodriguez-Garcia’s sixteen-level enhancement under USSG § 2L1.2(b)(1)(A)
(1999), where the underlying “aggravated felony” was his conviction for
attempted possession with intent to distribute a controlled substance for which he
received 30 days in jail. The relevance of Application Note 5 and Amendment
632 was also to be addressed. We exercise jurisdiction pursuant to 28 U.S.C.
§ 1291 and affirm. We deny a COA on the remaining issues.
Mr. Rodriguez-Garcia was convicted on a guilty plea of illegal reentry of a
deported alien in violation of 8 U.S.C. § 1326. After granting his motion for a
downward departure and lowering his criminal history from Category III to
Category II, the district court sentenced him to the guideline minimum of 41
months’ imprisonment, followed by 36 months’ supervised release, and a fee of
$100. In his subsequent § 2255 motion, Mr. Rodriguez-Garcia claimed that his
sentence was too lengthy because his counsel had been ineffective in failing to
move for a downward departure. He maintains that the predicate offense used for
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the “aggravated felony” enhancement was so minor that a downward departure
was appropriate. The district court denied the § 2255 motion.
To establish that counsel provided ineffective assistance, a defendant must
show both that his attorney’s representation was deficient and that the attorney’s
substandard performance prejudiced him. Strickland v. Washington , 466 U.S.
668, 687 (1984). We review the district court’s fact findings in a § 2255
proceeding under the clearly erroneous standard, and the performance and
prejudice issues de novo because they involve mixed questions of fact and law.
United States v. Haddock , 12 F.3d 950, 955 (10th Cir. 1993). We also review
de novo the district court’s interpretation of the sentencing guidelines. United
States v. Torres-Aquino , 334 F.3d 939, 940 (10th Cir. 2003). Because Mr.
Rodriguez-Garcia is representing himself on appeal, his pleadings will be liberally
construed. Haines v. Kerner, 404 U.S. 519, 520 (1972).
Mr. Rodriguez-Garcia alleges that his trial attorney provided
constitutionally ineffective assistance because he did not request a reduction in
the sixteen-level enhancement based on his prior aggravated felony. At the time
he was sentenced, USSG § 2L1.2(b)(1)(A) required a sixteen-level enhancement
if the defendant previously had been convicted of an aggravated felony, as
defined in 8 U.S.C. § 1101(a)(43). Mr. Rodriguez-Garcia does not dispute that
his underlying felony fits this definition. Therefore, we consider whether he was
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entitled to a downward departure authorized by Application Note 5. 1
At issue
here is the condition that a downward departure was authorized if the term of
imprisonment imposed for the underlying offense did not exceed one year. USSG
§ 2L1.2, Application Note 5.
Even though Mr. Rodriguez-Garcia received a 30-day jail sentence as a
condition of his probation for the underlying felony, the sentence imposed was for
an indeterminate term of zero to five years. The fact that his sentence was
suspended is irrelevant; the “term of imprisonment” referred to in Application
Note 5 is the sentence imposed. United States v. Marquez-Gallegos , 217 F.3d
1267, 1269-70 (10th Cir. 2000). Moreover, “we measure the term of
imprisonment for an indeterminate sentence by the possible maximum term of
imprisonment,” here, five years. United States v. Chavez-Valenzuela , 170 F.3d
1038, 1040 (10th Cir. 1999). Therefore, Application Note 5 does not apply to Mr.
Rodriguez-Garcia.
1
At the time of Mr. Rodriguez-Garcia’s sentencing, Application Note 5 to
USSG § 2L1.2 stated in part:
If subsection (b)(1)(A) applies and (A) the defendant has
previously been convicted of only one felony offense;
(B) such offense was not a crime of violence or firearms
offense; and (C) the term of imprisonment imposed for
such offense did not exceed one year, a downward
departure may be warranted based on the seriousness of
the aggravated felony.
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Amendment 632 also does not apply. This amendment changed
“§ 2L1.2(b)’s aggravated-felony enhancement to provide for an increase of eight
to sixteen levels according to the seriousness of the earlier aggravated felony.”
Torres-Aquino , 334 F.3d at 940. It became effective on November 1, 2002, and
may not be applied retroactively to reduce a defendant’s sentence. Id. at 940-41.
Mr. Rodriguez-Garcia was sentenced on December 11, 2000, before the
amendment’s effective date.
In conclusion, we hold that Mr. Rodriguez-Garcia has failed to demonstrate
that his trial attorney’s performance was constitutionally deficient or that he
suffered any prejudice as a result of his attorney’s representation.
The judgment of the district court is AFFIRMED. Issuance of a COA is
denied on the remaining issues Mr. Rodriguez-Garcia raised. The mandate shall
issue forthwith.
Entered for the Court
Michael R. Murphy
Circuit Judge
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