United States v. Payan-Paz

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 97-40126
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANA YUBY PAYAN-PAZ,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
(USDC No. 1:94-CV-409)
_________________________________________________________________
January 15, 1998
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Ana Yuby Payan-Paz appeals the denial of her 28 U.S.C. § 2255
motion to vacate or correct her sentence. As part of a plea
agreement, she pleaded guilty to conspiracy to distribute cocaine
and was sentenced to 151 months imprisonment. She asserts that her
guilty plea was not intelligently and voluntarily given because she
did not understand the consequences of pleading guilty and that the
Government breached the plea agreement. She contends also that she
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
was denied effective assistance of counsel at the trial, appellate,
and post-conviction levels.
Appellant maintains that she did not understand the
consequences of pleading guilty and that the Government secured her
plea agreement under false pretenses. She is apparently asserting
that she did not understand the amount of cocaine for which she
could be held accountable and that the Government breached the
agreement because she was sentenced based on 18 1/4 kilograms, when
she only pleaded guilty to distribution of five kilograms and the
evidence demonstrated that the most with which she was involved was
10 1/4 kilograms. The contention that the Government breached the
plea agreement was not raised in district court; therefore, we
review only for plain error. E.g., United States v. Calverley, 37
F.3d 160, 162-64 (5th Cir. 1994) (en banc), cert. denied, 513 U.S.
1196 (1995).
Appellant has not demonstrated that her guilty plea was
involuntary or that she entered her plea in reliance on promises
that were breached. See United States v. Borders, 992 F.2d 563,
567 (5th Cir. 1993) (“[W]hen a plea rests in any significant degree
on a promise or agreement of the prosecutor, so that it can be said
to be part of the inducement or consideration, such promise must be
fulfilled.”) (quoting Santobello v. New York, 404 U.S. 257, 262
(1971)). During the plea colloquy, the district court advised
Payan-Paz of the applicable guideline range for her offense, and
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she stated that she had spoken with her attorney and understood the
consequences of the plea agreement. In addition, we find no error
in the calculation of Payan-Paz’s sentence based on 18 1/4
kilograms. See United States v. Patten, 40 F.3d 774, 776 (5th Cir.
1994) (finding “no constitutional violation if the district court
includes the full quantity of drugs involved in the conspiracy and
not just the quantity of drugs in the count of conviction”), cert.
denied, 515 U.S. 1132 (1995).
In order to prevail on a claim for ineffective assistance of
counsel, Appellant must demonstrate that was deficient performance
by her attorney which prejudiced her defense. United States v.
Faubion, 19 F.3d 226, 228 (5th Cir. 1994). Because the contention
that the Government breached the plea agreement is without merit,
Appellant has failed to demonstrate prejudice in her counsel’s
failure to raise this issue during sentencing, and, therefore, we
find no ineffectiveness of counsel at sentencing. See Lowery v.
Estelle, 696 F.2d 333, 343-44 (5th Cir. 1983). Moreover, trial
counsel was not deficient in failing to urge Payan-Paz to proceed
to trial and raise a Fourth Amendment objection to the introduction
of the taped conversations. See United States v. Smith, 978 F.2d
171 (5th Cir. 1992) (holding, under similar facts, that the
defendant did not satisfy his burden of showing that the
introduction of taped cordless telephone conversations, monitored
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on a neighbor’s scanner, was a violation of the defendant’s Fourth
Amendment rights), cert. denied, 507 U.S. 999 (1993).
In this regard, as the above issues are without merit,
Appellant has not shown that her appellate counsel’s performance
prejudiced her. See Williams v. Collins, 16 F.3d 626, 634-35 (5th
Cir.), cert. denied, 512 U.S. 1289 (1994). Finally, the claim of
ineffective assistance of counsel in post-conviction habeas
proceedings is also without merit because a convicted defendant has
no Sixth Amendment right to counsel in such proceedings. See
Irving v. Hargett, 59 F.3d 23, 26 (5th Cir. 1995) (“Because a
petitioner does not have a constitutional right to counsel in post-
conviction habeas proceedings, it follows that a petitioner cannot
claim ineffective assistance of counsel in such proceedings.”),
cert. denied, ___ U.S. ___, 116 S. Ct. 929 (1996).
AFFIRMED
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