Appellate Case: 24-2063 Document: 22-1 Date Filed: 05/02/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 2, 2025 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 24-2063 (D.C. Nos. 2:20-CV-00745-RB-KK & JOSE REMBERTO GUZMAN- 2:16-CR-00580-RB-KK-1) DOMINGUEZ, (D. N.M.)
Defendant - Appellant. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before PHILLIPS, CARSON, and FEDERICO, Circuit Judges. _________________________________
A jury convicted Jose Remberto Guzman-Dominguez of drug conspiracy and
possession offenses. We affirmed his and his co-defendant’s convictions. United States
v. Rodriguez-Flores, 907 F.3d 1309 (10th Cir. 2018). Mr. Guzman-Dominguez then filed
a motion under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. The district
court denied his motion, and he seeks to appeal the denial. To do so, he requires a
certificate of appealability (COA). On consideration, we deny a COA and dismiss this
matter.
* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 24-2063 Document: 22-1 Date Filed: 05/02/2025 Page: 2
BACKGROUND
1. Mr. Guzman-Dominguez’s conviction and sentence
We have described the basic facts underlying Mr. Guzman-Dominguez’s
conviction as follows:
On November 14, 2015, at 12:29 a.m., Guzman-Dominguez drove his commercial truck into the state port of entry on Interstate 10 near Lordsburg, New Mexico. [Miguel Angel] Rodriguez-Flores was his sole passenger. Inspector Jesus Salcedo was assigned to do level 1 inspections, which involve examining paperwork, the truck, and the cargo. Salcedo testified that as he was examining the underside of the vehicle, Guzman-Dominguez was unusually chatty. Guzman-Dominguez told the inspector that he had just installed new brakes, but Salcedo, a former mechanic, testified that there were no new brakes. When Salcedo searched the cargo area of the truck, he saw 17 four- foot-by-four-foot totes (plastic containers inside metal cages) filled with liquid chemical cleaner. Each tote weighed about 2400 pounds. According to the bill of lading, signed by Rodriguez-Flores but given to Salcedo by Guzman-Dominguez, the totes had been picked up the previous day from Mirachem, an industrial-cleaner manufacturer in Phoenix, Arizona. Climbing into the truck and over the totes, Salcedo discovered four cardboard boxes, which were unaccounted for in the bill of lading. One box was open, and he saw green saran-wrapped bundles inside. From his training he believed the boxes contained narcotics, so he returned to his booth to report the discovery. (It was later determined that the boxes contained 47.9 kilograms of cocaine and 5.24 kilograms of heroin.) Rodriguez-Flores, 907 F.3d at 1313.
A federal indictment charged Mr. Guzman-Dominguez with three criminal counts:
(1) conspiracy to distribute at least five kilograms of cocaine and at least one kilogram of
heroin, see 21 U.S.C. § 846; (2) possession with intent to distribute at least five kilograms
of cocaine, see id. §§ 841(a)(1) and (b)(1)(A); and (3) possession with intent to distribute
at least one kilogram of heroin, see id. A jury convicted him of all three counts. The
district court sentenced him to concurrent terms of incarceration of 180 months. 2 Appellate Case: 24-2063 Document: 22-1 Date Filed: 05/02/2025 Page: 3
2. Our direct appeal decision
On direct appeal, Mr. Guzman-Dominguez’s co-defendant challenged the
sufficiency of the evidence presented at trial that he knew about the drug cargo.
We rejected his challenge, characterizing it as “border[ing] on the frivolous.”
Rodriguez-Flores, 907 F.3d at 1318. We concluded there was “compelling evidence that
the drugs were added to the cargo after Defendants picked up the chemical cleaner, that
Defendants were together and controlled the truck from the time of that pick-up until
their arrests a few hours later, and that they were close associates who were working
together in the venture.” Id. at 1313.
Both defendants also challenged the testimony of an expert witness, Agent Joseph
Montoya. They contended Montoya improperly expressed an opinion about their
credibility. Because neither defendant had objected to the testimony at trial or requested
a limiting or corrective instruction, we reviewed only for plain error. We determined
defendants met the first two elements of the plain-error test because “it was clearly error
to permit Montoya to testify to his opinion that drug couriers who deny knowledge of the
drugs are lying.” Id. at 1321. But they had not shown the third component of the
plain-error test, which requires an infringement of their substantial rights, for three
reasons: “(1) Montoya did not present himself as an expert on indicia of truth-telling;
(2) the incriminatory gist of the challenged statement was presented to the jury through
other testimony that was not challenged at trial and is not challenged on appeal; and
(3) the evidence against Defendants was very strong.” Id. at 1322. We therefore
concluded defendants were not entitled to relief.
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3. The district court’s decision on this § 2255 motion
Mr. Guzman-Dominguez filed his pro se amended § 2255 motion in November
2020.1 A magistrate judge considered the motion, the parties’ submissions, the record,
and the relevant law, and recommended that the motion be denied. The district court
overruled Mr. Guzman-Dominguez’s objections and adopted the magistrate judge’s
proposed findings and recommended disposition. It dismissed the motion with prejudice
and denied a COA.
DISCUSSION
The granting of a COA is a jurisdictional prerequisite to an appeal from the denial
of a § 2255 motion. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). To obtain a
COA, Mr. Guzman-Dominguez must make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). This requires him to demonstrate that
“reasonable jurists could debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336
(internal quotation marks omitted). In addition, because the district court in this case
denied at least one of Mr. Guzman-Dominguez’s claims on procedural grounds, he must
also, with respect to those claims, show “that jurists of reason would find it debatable
1 Mr. Guzman-Dominguez filed an initial motion in July 2020 that consisted primarily of a handwritten letter in Spanish accompanied by an English translation. He later filed an amended motion on a court form, attaching to it his original letter. The district court considered the arguments he made in both the form motion and the accompanying letter. 4 Appellate Case: 24-2063 Document: 22-1 Date Filed: 05/02/2025 Page: 5
whether the district court was correct in its procedural ruling.” Slack v. McDaniel,
529 U.S. 473, 484 (2000).2
1. Agent Montoya’s Testimony
As noted, we previously denied Mr. Guzman-Dominguez’s claim that the district
court improperly permitted Agent Montoya to testify about the credibility of drug
couriers.3 He now re-urges that claim under the rubric of ineffective assistance of
counsel. He argues his trial attorney’s failure to object to the improper testimony resulted
in his claim receiving only plain error review on appeal.
2 We construe Mr. Guzman-Dominguez’s pro se briefing liberally but do not serve as his advocate. Luo v. Wang, 71 F.4th 1289, 1291 n.1 (10th Cir. 2023). 3 In our direct appeal decision, we quoted Agent Montoya’s testimony:
Q: During the course of your career at DEA, approximately how many drug traffickers have you debriefed? A. That would be hundreds of drug traffickers. Q. And during those debriefings, did any of these drug traffickers ever tell you things that were not true? A. Yes. Q. In your professional experience, was it common or uncommon for drug traffickers to tell you things that weren’t true? A. It was common. Q. Okay. And have you been involved in cases in which people who were found transporting drugs claimed to have no knowledge of those drugs? A. Yes. Q. Did you generally believe these people were telling the truth when they told you they didn't know about the drugs they were transporting? A. No.
Rodriguez-Flores, 907 F.3d at 1321.
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To present a successful claim for ineffective assistance of counsel,
Mr. Guzman-Dominguez “must show [1] that counsel’s performance fell below an
objective standard of reasonableness and [2] that he was prejudiced thereby, which
entails demonstrating a reasonable probability of a more favorable outcome absent
counsel’s deficient performance.” Tryon v. Quick, 81 F.4th 1110, 1140-41 (10th Cir.
2023), cert. denied, 144 S. Ct. 2586 (2024) (citing Strickland v. Washington, 466 U.S.
668 (1984)). The district court concluded Mr. Guzman-Dominguez had not shown
prejudice. It reasoned that Strickland’s prejudice standard is virtually identical to the
showing required to establish that a defendant’s substantial rights were affected by a
plain error. So, because this court had already determined that Mr. Guzman-Dominguez
failed to show his substantial rights were affected, he also necessarily failed to
demonstrate prejudice under the Strickland analysis.
Mr. Guzman-Dominguez characterizes the district court’s analysis as an
“over-simplification” that “misses [his] primary point” that absent his attorney’s failure
to object, his direct appeal “would have been reviewed under a different standard which
could have changed the outcome.” COA Appl. at 5. He relies on Cannon v. Mullin,
383 F.3d 1152, 1174 (10th Cir. 2004), abrogated on other grounds by Cullen v.
Pinholster, 563 U.S. 170 (2011), for the proposition that Strickland’s prejudice standard
is more solicitous to a defendant’s rights than the plain error standard. As we understand
his argument, he contends we should not directly compare the “substantial rights”
standard with Strickland’s prejudice standard, as the district court did. Instead, we should
add a step to the analysis by first determining the substantive standard this court would
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have applied on appeal had counsel objected, and then by assessing whether
Mr. Guzman-Dominguez suffered Strickland prejudice by forfeiting the potential
outcome, under that standard, of a properly preserved argument.
But we discern no difference in the result even if we were to apply such an
analysis. Had trial counsel objected to the expert’s testimony, we would have assessed
on appeal whether any error was harmless. See United States v. Cordova, 25 F.4th 817,
828 (10th Cir. 2002) (on appeal, we “will not disturb a defendant’s conviction based on
erroneous admission of evidence if the error is harmless”). And a “non-constitutional
error, such as a decision whether to admit or exclude evidence, is considered harmless
unless a substantial right of a party is affected.” United States v. Chavez, 976 F.3d 1178,
1204 (10th Cir. 2020) (emphasis added) (brackets and internal quotation marks omitted).
Given our conclusion that any error did not affect Mr. Guzman-Dominguez’s substantial
rights, Rodriguez-Flores, 907 F.3d at 1322, we would reach the same result even if trial
counsel had preserved the issue by objecting. It thus follows that trial counsel’s failure to
object did not prejudice Mr. Guzman-Dominguez under the Strickland standard, because
there was no reasonable likelihood of a different outcome even if trial counsel had
objected. The district court’s rejection of this claim was thus not reasonably debatable.
2. Allen instruction
After it had deliberated for two and a half hours, the jury sent the court the
following note: “Some feel that the government did not provide concrete evidence and
some feel that the government did provide enough evidence. Therefore, we’ve not come
to an agreement.” R., vol. 12 at 71-72 (quoting R., vol. 11 at 3). In response to the note,
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the trial court proposed an instruction as follows: “Ladies and gentlemen, please
continue to deliberate and reach agreement, if you can. Two and a half hours of
deliberation after three days of trial may not be enough. Lunch is on the way. We will
await further word. Thank you.” R., vol. 11 at 5. Based on a comment by
Mr. Guzman-Dominguez’s counsel, the court added language to the proposed instruction
referring the jurors to its previous instruction describing their duties. It then gave the
proposed instruction as modified. The jury thereafter returned its guilty verdict.
Mr. Guzman-Dominguez argues his counsel acted ineffectively by failing to either
argue for a proper charge under Allen v. United States, 164 U.S. 492, 501-02 (1896), or
by not pushing for a determination that the jury was deadlocked. His arguments boil
down to whether counsel performed deficiently, to his prejudice, by failing to object to
what he contends was an improper Allen instruction. And that in turn depends on
whether the instruction was improperly coercive.
“A district court must not deliver an improperly coercive Allen instruction.”
United States v. Coulter, 57 F.4th 1168, 1192 (10th Cir.) (internal quotation marks
omitted), cert. denied, 143 S. Ct. 2627 (2023). In assessing whether the instruction was
improperly coercive, we consider four factors: “(1) the language of the instruction,
(2) whether the instruction is presented with other instructions, (3) the timing of the
instruction, and (4) the length of the jury’s subsequent deliberations.” Id. (internal
quotation marks omitted).
The district court concluded that an analysis of these factors showed the
instruction was not coercive. Mr. Guzman-Dominguez challenges the district court’s
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conclusion concerning the fourth factor, the length of the jury’s subsequent deliberations.
The district court reasoned that although it was unclear how long the jury deliberated
after the Allen charge, that factor was not dispositive. Mr. Guzman-Dominguez contends
this means the court improperly discounted the time factor altogether. But even if this is
true his argument does not warrant a COA. See Davis v. Roberts, 425 F.3d 830, 834
(10th Cir. 2005) (this court may deny a COA on any basis in the record, even if not relied
on by the district court).
Although the record is unclear about the precise length of the jury’s subsequent
deliberations, it does provide some useful indications. The court finished drafting its
proposed Allen instruction at 11:58 a.m. The court then submitted the instruction to the
jury. The court recessed, after which the jury submitted a note indicating that they had
reached a verdict. That note was marked 1:20 p.m. Thus, approximately one hour and
twenty minutes elapsed from the time the court submitted its Allen instruction until the
jury reached a verdict.
Although a “relatively long period” of deliberation “tends to negate an inference
of improper coercion,” Coulter, 57 F.4th at 1193 (internal quotation marks omitted), the
opposite is not necessarily true. We have approved Allen instructions where juries
deliberated for a relatively short time after receiving the instruction. See, e.g., United
States v. Arney, 248 F.3d 984, 990 (10th Cir. 2001) (one hour); United States vs.
McKinney, 822 F.2d 946, 950 (10th Cir. 1987) (verdict on twenty-nine counts returned
one hour and twenty minutes after receiving an Allen instruction); Munroe v. United
States, 424 F.2d 243, 246 (10th Cir. 1970) (forty minutes). Mr. Guzman-Dominguez
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fails to show a debatable issue concerning whether the short deliberation time in his case
meant the trial court gave a coercive Allen instruction.
Mr. Guzman-Dominguez also argues that instead of cooperating in crafting the
instruction, his counsel should have urged the court to accept the jury’s “deadlocked”
verdict. But when a jury indicates that it is unable to reach a verdict, the trial court is not
required to accept such representation and may require it to continue deliberating. See
Arney, 248 F.3d at 989. Here, the jury had only debated for two and one-half hours after
a three-day trial. Mr. Guzman-Dominguez fails to show it is debatable whether his
attorney could have obtained a different outcome (i.e., a mistrial) by arguing in favor of
accepting the deadlocked verdict.
He also suggests counsel should have asked the court to instruct the jury to
evaluate his culpability separate from his co-defendant’s. But the jury’s note did not
suggest its deadlock had anything to do with the relative strength of the evidence against
each defendant. And the instructions the court had already given made it abundantly
clear the jury should evaluate each defendant’s culpability separately. See, e.g., R., vol. 3
at 178 (“There is more than one defendant on trial in this case. Each defendant is entitled
to have you determine his guilt separately and individually. . . . The government has the
burden of providing beyond a reasonable doubt the guilt of each defendant separately.
When you consider the evidence it is your duty to examine it carefully as to the charges
against each defendant separately, as if he were on trial alone.”).
Mr. Guzman-Dominguez is not entitled to a COA on this issue.
3. Procedural Issues
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A. Obstruction of justice enhancement
In sentencing Mr. Guzman-Dominguez, the trial court imposed an
enhancement for obstruction of justice. See U.S. Sentencing Guidelines Manual § 3C1.1
(2016). He contends his attorney should have objected to the enhancement.
Mr. Guzman-Dominguez did not raise an issue about this enhancement in his § 2255
motion. Instead, he attempted to challenge the enhancement through a motion to
supplement his reply brief. The district court declined to reach this issue, finding it could
have been asserted on direct appeal and Mr. Guzman-Dominguez had raised it for the
first time in an untimely motion seeking to supplement his reply.
A district court need not address arguments made for the first time in a reply brief.
See, e.g., FDIC v. Kan. Bankers Sur. Co., 840 F.3d 1167, 1173 (10th Cir. 2016)
(argument first made in a motion-to-reconsider reply brief was “raised too late”). On
appeal, Mr. Guzman-Dominguez raises a number of arguments challenging the district
court’s procedural ruling. None has debatable merit that warrant the issuance of a COA.
He also argues that notwithstanding his procedural default, this court should reach
the merits of this issue under plain error review, or in the exercise of discretion. See, e.g.,
United States v. Bowline, 917 F.3d 1227, 1232 (10th Cir. 2019) (“failure to timely assert
a right ordinarily merely forfeits the issue and the issue can be reviewed on appeal for
plain error”). But he fails to show a debatable issue concerning whether the district
court’s procedural denial of this claim produced a plainly erroneous result, or whether we
should reach his waived issue in the exercise of discretion.
B. District court’s review of magistrate judge’s recommendation
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Finally, Mr. Guzman-Dominguez contends that the district court’s blanket
statement that it agreed with the magistrate judge’s findings provides insufficient
evidence that it independently reviewed the issues.4 We cannot grant a COA solely based
on this procedural issue. See United States v. Taylor, 454 F.3d 1075, 1078 (10th Cir.
2006) (“Under the Antiterrorism and Effective Death Penalty Act . . . a COA may issue
only when the applicant has made a substantial showing of the denial of a constitutional
right.” (internal quotation marks omitted)). In addition, although a district court must
make a de novo determination of the objections to recommendations under 28 U.S.C.
§ 636(b)(1), the court is not precluded from relying on the Magistrate Judge’s report and
recommendation. See United States v. Raddatz, 447 U.S. 667, 676 (1980) (“[I]n
providing for a ‘de novo determination’ rather than de novo hearing, Congress intended
to permit whatever reliance a district judge, in the exercise of sound judicial discretion,
chose to place on a magistrate’s proposed findings and recommendations.” (quoting
§ 636(b)(1))). A COA is not warranted on this claim.
4 The district court stated:
Pursuant to Federal Rule of Civil Procedure 72(b), the Court conducted a de novo review of the record and all parts of [Magistrate] Judge Khalsa’s [Proposed Findings and Recommended Disposition] that have been properly objected to. After conducting a de novo review and having thoroughly considered the PFRD and Guzman-Dominguez’s objections, the Court finds that a response to the Objections is unnecessary. The Court further finds no reason either in law or fact to depart from Judge Khalsa’s recommended disposition. R., vol. 12 at 156.
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CONCLUSION
We deny a COA and dismiss this matter.
Entered for the Court
Joel M. Carson III Circuit Judge