United States v. Sanchez

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 1, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 16-7021
v. (D.C. Nos. 6:12-CV-00436-RAW
& No. 6:09-CR-0037-RAW-1)
RODOLFO SANABRIA SANCHEZ, (E.D. Okla.)
Defendant-Appellant.
_________________________________
ORDER DENYING A CERTIFICATE OF APPEALABILITY AND
DISMISSING THE APPEAL
_________________________________
Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
_________________________________
Mr. Rodolfo Sanchez was convicted in federal court on drug charges.
After an unsuccessful appeal, Mr. Sanchez moved to vacate his conviction
under 28 U.S.C. § 2255. The district court denied Mr. Sanchez’s motion to
vacate and declined to grant a certificate of appealability.
Mr. Sanchez now asks our court for a certificate of appealability so
that he can appeal on grounds of ineffective assistance of counsel and
cumulative error. We conclude that these claims are not reasonably
debatable. Accordingly, we deny Mr. Sanchez’s request for a certificate of
appealability and dismiss the appeal.
I. Standard for a Certificate of Appealability
To appeal, Mr. Sanchez needs a certificate of appealability. 28
U.S.C. § 2253(c)(1)(B). To receive a certificate, Mr. Sanchez must make a
“substantial showing of the denial of a constitutional right.” 28 U.S.C.
2253(c)(2); Miller–El v. Cockrell, 537 U.S. 322, 336 (2003). A substantial
showing has been made only if we are able to conclude that reasonable
jurists could regard the district court’s rulings as debatable or wrong. See
Laurson v. Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007).
II. Ineffective-Assistance Claims
Mr. Sanchez alleges ineffective assistance of counsel based on his
 trial counsel’s failure to allege a constructive amendment of
the indictment and
 appellate counsel’s failure to allege that trial counsel had a
conflict of interest and that the district court should have
granted a motion to suppress.
A. The Test for Ineffective Assistance of Counsel
We analyze these claims under Strickland v. Washington, 466 U.S.
668 (1984). Strickland establishes a two-part burden for Mr. Sanchez.
First, he must show that his counsel’s representation was deficient by
falling “below an objective standard of reasonableness.” Id. at 687-88.
Second, Mr. Sanchez must show that the deficiency was prejudicial. Id. at
692. The alleged deficiency was prejudicial only if “there is a reasonable
2
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694.
B. Trial Counsel
Mr. Sanchez contends that his trial counsel was ineffective by failing
to object to evidence of uncharged offenses. To Mr. Sanchez, the
prosecution’s use of this evidence served to constructively amend the
indictment.
Evaluation of the prejudice prong involves two inquiries:
1. What would the district court have done if defense counsel had
objected?
2. What would we have done if the district court had overruled the
objection?
The district court would have overruled the objection, and we would have
upheld that ruling.
On the first inquiry, the district court was ideally suited to answer
because it had already addressed the evidentiary issue and knew how it
would have ruled if defense counsel had objected at trial. See Blackledge v.
Allison, 431 U.S. 63, 74 n.4 (1977). 1 Before trial began, the court had
quizzed the attorneys about the evidence of uncharged offenses and
1
In Blackledge, the Supreme Court stated: “Unlike federal habeas
corpus proceedings, a motion under § 2255 is ordinarily presented to the
judge who presided at the original conviction and sentencing of the
prisoner. In some cases, the judge’s recollection of the events at issue may
enable him summarily to dismiss a § 2255 motion, even though he could
not summarily dispose of a habeas corpus petition challenging a state
conviction but presenting identical allegations.” 431 U.S. at 74 n.4.
3
expressed a preliminary ruling that the evidence would be admissible under
Fed. R. Evid. 404(b)(2). And after the trial, the court confirmed that it
would have overruled an objection made at trial because the evidence was
intrinsic to the charged conduct. In these circumstances, no reasonable
jurist would expect the district court to have sustained an objection if it
had been made. See Gustave v. United States, 627 F.2d 901, 904 (9th Cir.
1980) (“Considering that the same judge denied an identical motion to
suppress at the first trial, we do not believe petitioner’s case was
prejudiced by his attorney’s failure to make [a similar motion to suppress]”
at a second trial); Bynum v. Lemmon, 560 F.3d 678, 685-86 (7th Cir. 2009)
(concluding that the district court’s post-conviction findings showed that
the defendant had not been prejudiced from defense counsel’s failure to
file a motion to suppress).
Nonetheless, if his counsel had unsuccessfully objected to the
evidence, Mr. Sanchez might have appealed. Had Mr. Sanchez done so,
though, we undoubtedly would have rejected his appeal point.
The U.S. Constitution forbids constructive amendment of an
indictment. United States v. Farr, 536 F.3d 1174, 1180 (10th Cir. 2008).
An indictment is constructively amended when the evidence and jury
instructions make it possible to convict the defendant for something not
charged in the indictment. United States v. Apodaca, 843 F.2d 421, 428
(10th Cir. 2008). In assessing this possibility, we compare the indictment
4
with the district court proceedings to determine if those proceedings
broadened the basis for a conviction. Farr, 536 F.3d at 1180.
The indictment was short and specific, alleging that Mr. Sanchez
knowingly and intentionally possessed, with the intent to distribute, at
least 500 grams of a methamphetamine mixture on or about March 13,
2009. In light of this allegation, the government presented extensive
evidence of a controlled sale to Mr. Sanchez on March 13, 2009.
The government also presented evidence that the seller had made
similar deliveries in the past. According to Mr. Sanchez, that evidence
broadened the possible basis for a conviction. But our court would have
rejected that argument, for the district court instructed the jury at the close
of the evidence: “The Defendant is on trial only for the crime charged in
the indictment, not for any other acts or conduct.” Jury Instructions at 4.
As a result, Mr. Sanchez was not prejudiced by the absence of a trial
objection based on constructive amendment of the indictment.
C. Appellate Counsel
Mr. Sanchez also contends that his appellate counsel was ineffective
by failing to appear for oral argument, declining to file a reply brief, and
failing to appeal the denial of a motion to suppress. These contentions are
not reasonably debatable.
5
1. Failure to Appear for Oral Argument
It is true that Mr. Sanchez’s appellate attorney did not attend oral
argument. The attorney later explained that he had thought the case was no
longer set for oral argument. We assume, for the sake of argument, that
this failure to attend constituted a deficiency, satisfying the first of
Strickland’s two prongs. Even with this assumption, an ineffective-
assistance claim would fail because the attorney’s absence from oral
argument would not have been prejudicial.
The assigned panel would have reset the case for oral argument if
any of the three judges thought that oral argument might have been helpful.
Fed. R. App. P. 34(a)(2). None did, so the panel decided the appeal on the
briefs. United States v. Sanchez, 431 F. App’x 664, 665 (10th Cir. 2011)
(unpublished) (“[T]his panel has determined unanimously that oral
argument would not materially assist in the determination of this appeal.”).
In light of that determination, there is little reason to expect a different
outcome if defense counsel had attended the oral argument when it was
initially scheduled.
2. Failure to File a Reply Brief
Mr. Sanchez also argues that his appellate attorney should have filed
a reply brief. But Mr. Sanchez does not say what his attorney should have
6
said in the reply brief. As a result, no reasonable jurist would regard the
absence of a reply brief as prejudicial. 2
3. Failure to Appeal the Denial of a Motion to Suppress
In addition, Mr. Sanchez claims that his appellate counsel was
ineffective by failing to raise the district court’s denial of a motion to
suppress. The district court rejected this claim, reasoning that an appeal on
the suppression issue would have proved fruitless. This rationale is not
subject to legitimate debate.
Mr. Sanchez filed a motion to suppress in district court. There, a
magistrate judge conducted a hearing and issued a report recommending
denial of the motion to suppress. The magistrate judge stated that all
objections were due within ten days of service. No one objected, and the
district judge adopted the recommendation. The absence of an objection to
the magistrate judge’s report would have proved fatal if counsel had
appealed the conviction based on denial of the motion to suppress. 3
2
See United States v. Birtle, 792 F.2d 846, 849 (9th Cir. 1986)
(holding that defense counsel’s failure to appear at oral argument and file a
reply brief were not prejudicial given the defendant’s failure to show how
oral argument or a reply brief “would have resulted in a reasonable
probability of a different outcome”).
3
In district court, Mr. Sanchez argued that trial counsel was
ineffective for failing to object to the magistrate judge’s report. But Mr.
Sanchez’s proposed appeal point has dropped trial counsel from the
ineffective-assistance claim.
7
Our circuit “has adopted a firm waiver rule under which a party who
fails to make a timely objection to the magistrate judge’s findings and
recommendations waives appellate review of both factual and legal
questions.” Morales-Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir.
2005). Two exceptions exist:
1. failure of the court to inform a pro se litigant of the
consequences of a failure to object and
2. the interests of justice.
Id.
These exceptions do not apply here. Mr. Sanchez was not appearing
pro se, and there is no apparent basis for our court to apply the interests-
of-justice exception. As a result, no reasonable jurist could have found
prejudice from the failure to appeal the ruling on the suppression issue.
III. Cumulative Error and Existence of a Language Barrier with
Counsel
Mr. Sanchez also alleges cumulative error and difficulty in
understanding his attorney because of a language barrier. These arguments
lack merit. No reasonable jurist would have found two or more
constitutional errors or credited Mr. Sanchez’s complaint about a language
barrier.
8
IV. Disposition
We decline to issue a certificate of appealability. As a result, we
dismiss the appeal.
Entered for the Court
Robert E. Bacharach
Circuit Judge
9