United States v. Frias-Legarda

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 18, 1998
• Docket: 96-2252
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit

DEC 18 1998 UNITED STATES COURT OF APPEALS PATRICK FISHER TENTH CIRCUIT Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 96-2252 v. (D.C. No. CR-96-328-JC) (New Mexico) VICTOR MANUEL FRIAS- LEGARDA,

Defendant-Appellant.

ORDER AND JUDGMENT *

Before SEYMOUR, Chief Judge, BRORBY and BRISCOE, 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. 34.1.9. The cause 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel.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. Victor Manuel Frias-Legarda was stopped at a border checkpoint at

Alamogordo, New Mexico, and upon questioning was unable to provide

registration or proof of insurance for the truck he was driving. He consented to a

canine sniff search of the truck, which ultimately resulted in the discovery of over

130 pounds of marijuana hidden in the truck’s gas tanks. He was convicted after

a jury trial of possessing with intent to distribute 50 kilograms or more of

marijuana, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(C),

and sentenced to forty-one months in prison and two years of supervised release.

Mr. Frias-Lagarda’s retained counsel filed a notice of appeal and

subsequently filed a brief pursuant to Tenth Circuit Rule 46.4 (B) (1) and Anders

v. California, 386 U.S. 738 (1967). Anders holds that if after conscientious

examination counsel finds a case to be wholly frivolous, he should so advise the

court and request permission to withdraw. Counsel must in addition submit to

both the court and his client a brief referring to anything in the record arguably

supportive of the appeal. The client may then raise any points he chooses, and the

appellate court thereafter undertakes a complete examination of all the

proceedings and decides whether the appeal is wholly frivolous. If it so finds, it

may grant counsel’s request to withdraw. See id. at 744. Although Anders itself

dealt only with the duties of appointed counsel, Tenth Circuit Rule 46.4 (B)(1)

imposes those duties on all counsel.

-2- In his Anders brief, counsel presented two points of error, raising the trial

court’s denial of a three-point downward adjustment for acceptance of

responsibility, and the trial court’s refusal to let him re-cross examine a witness.

Counsel also stated his opinion that the appeal presented no non-frivolous issues

and requested leave to withdraw as counsel. Mr. Frias-Lagarda filed a pro se

brief in response asserting that his counsel was incompetent in processing his

appeal, and that the trial court’s comments to counsel in front of the jury denied

him due process. We turn to an examination of the proceedings to determine if

this appeal is wholly frivolous.

Counsel raises the trial court’s failure to give Mr. Frias-Lagarda a three-

point reduction in his offense level under U.S.S.G. § 3E1.1 for acceptance or

responsibility. The trial court denied the reduction on the ground that Mr. Frias-

Lagarda had consistently denied he knew the marijuana was in the fuel tanks.

“This adjustment is not intended to apply to a defendant who puts the government

to its burden of proof at trial by denying the essential factual elements of guilt, is

convicted, and only then admits guilt and expresses remorse.” § 3E1.1 comment.

(n.2); see also United States v. Portillo-Valenzuela, 20 F.3d 393, 394-95 (10th

Cir. 1994). Mr. Frias-Lagarda did not admit guilt and express remorse even after

his conviction. Accordingly, we see no error in the district court’s refusal to

provide an adjustment for acceptance of responsibility.

-3- Counsel also raises the issue of court-induced ineffective assistance due to

the trial court’s refusal to allow him to pursue three questions on re-cross

examination. “We have held that ‘[i]neffective assistance of counsel claims

should be brought in collateral proceedings, not on direct appeal. Such claims

brought on direct appeal are presumptively dismissable, and virtually all will be

dismissed.” United States v. Moreno, 94 F.3d 1453, 1456 (10th Cir. 1996)

(citation omitted). We have recognized an exception to our general rule,

however, and will hear ineffectiveness claims on direct appeal if the appellant’s

“argument that he was prejudiced by his trial counsel’s actions fails as a matter of

law.” Id. (footnote omitted). Our review of the trial transcript allows us to make

that determination here.

Although the trial court did not allow Mr. Frias-Lagarda’s counsel to ask

questions on re-cross, counsel called the witness in his own case-in-chief and was

allowed to examine him at length and without objection. Accordingly, we hold as

a matter of law that Mr. Frias-Lagarda was not prejudiced by the court-imposed

limit on re-cross.

Mr. Frias-Lagarda asserts pro se that his counsel was ineffective in the

manner in which he processed this appeal. Mr. Frias-Lagarda contends that

counsel failed to timely pursue the appeal and failed to raise two additional

issues. It is clear from the docket sheet that counsel’s delay in ordering and

-4- paying for the trial transcript was inordinate. However, Mr. Frias-Lagarda has as

a matter of law failed to show prejudice because his counsel’s delays have not

resulted in our failure to consider his appeal on the merits. Likewise he cannot

show prejudice from counsel’s failure to raise the additional issues. Mr. Frias-

Lagarda has himself raised them and we have considered them.

Finally, Mr. Frias-Lagarda argues that he was denied a fair trial as a result

of comments made by the trial court to his attorney, which Mr. Frias-Lagarda

contends show the court was biased against him.

[J]udicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible. . . . Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display. A judge’s ordinary efforts at courtroom administration--even a stern and short-tempered judge’s ordinary efforts at courtroom administration--remain immune.

Liteky v. United States, 510 U.S. 540, 555-56 (1994).

We have carefully reviewed the entire trial transcript in this case, and we

find nothing remotely approaching the high degree of antagonism required by

Liteky. To the contrary, the comments at issue here are no more than mild

expressions of impatience or annoyance described by the Supreme Court as

-5- immune from attack on the basis of bias. Accordingly, this claim is wholly

frivolous.

After careful review of the entire proceedings, we conclude that the record

establishes no ground for appeal. The judgment is therefore AFFIRMED and

counsel’s motion to withdraw is GRANTED.

ENTERED FOR THE COURT

Stephanie K. Seymour Chief Judge

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