United States v. Rendon

41 F. App'x 527
CourtCourt of Appeals for the Third Circuit
DecidedMay 24, 2002
DocketNo. 01-2374
StatusPublished
Cited by1 cases

This text of 41 F. App'x 527 (United States v. Rendon) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Rendon, 41 F. App'x 527 (3d Cir. 2002).

Opinion

OPINION OF THE COURT

PER CURIAM.

Because the parties are familiar with the background of this appeal, it will not be set out.

The first issue presented for review is whether the joint representation of Rios[529]*529Rendon and a co-conspirator prior to sentencing created a conflict of interest that required the District Court to conduct a colloquy under Fed.R.Crim.P. 44(c). Rule 44(c) provides in relevant part that “[wjhenever two or more defendants have been jointly charged ... and are represented by the same retained or assigned counsel ... the court shall promptly inquire with respect to such joint representation and shall personally advise each defendant of the right to the effective assistance of counsel, including separate representation.” The record is unclear as to the stage of the proceedings during which defense counsel represented both defendants; however, each defendant was represented by separate counsel at sentencing.

To obtain relief under Rule 44(c), the defendant “must point to an actual conflict of interest which adversely affected his attorney’s performance.” United States v. Pungitore, 910 F.2d 1084, 1141 (3d Cir.1990) (citing Burger v. Kemp, 483 U.S. 776, 783, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987)). In order to establish an actual conflict of interest, the defendant first must “demonstrate that some plausible alternative defense strategy or tactic might have been pursued.” Duncan v. Morton, 256 F.3d 189, 197 (3d Cir.2001) (quoting United States v. Morelli, 169 F.3d 798, 810 (3d Cir.1999)). This defense need not be successful, but it must possess sufficient substance to be a viable alternative. Id. Second, a defendant must “establish that the alternative defense was inherently in conflict with or not undertaken due to the attorney’s other loyalties or interests.” Id. Here, the defendant alleges that his attorney failed to argue vigorously that he played a minor role in the conspiracy and therefore should receive a lesser sentence than his co-defendant. The record demonstrates the contrary. Defense counsel’s cross examinations and arguments were directly aimed at establishing that the defendant was less culpable than his co-conspirators. Because the defendant has failed to present the Court with a plausible alternative defense strategy that counsel failed to advance, this argument fails.

The second issue presented for review is whether the District Court clearly erred in its determination of the amount of distributed cocaine attributable to the defendant for the purpose of determining the applicable range under the Sentencing Guidelines. The defendant specifically argues that (1) the presented evidence was not rehable; (2) it included aheged conduct beyond the offense of the conviction that arose in distinct and separate conspiracies; and (3) he did not have the ability to deliver the amount of cocaine that Martinez, a confidential informant, requested.

The government presented testimony and the District Court found that the defendant and his co-conspirators distributed in excess of 800 kilograms of cocaine. We review a district court’s “finding of fact supporting an upward adjustment to a sentencing level for clear error.” United States v. Bethancourt, 65 F.3d 1074, 1080 (3d Cir.1995). A confidential informant testified that he received “800 kilograms of cocaine to a thousand” from members of the conspiracy. Appendix at 216. He also testified that he was to receive 200 kilograms of a 400 kilogram shipment seized by the government. Id. at 231. A co-conspirator testified that he supplied 170 kilograms of cocaine to the defendant for distribution to the confidential informant. Id. at 299. This testimony was corroborated by numerous recorded telephone calls between the defendant, the confidential informant, and a co-conspirator. The determination of “the credibility of witnesses is uniquely within the province of the trial court and this court will not review this determination.” United States v. Bethancourt, 65 F.3d 1074, 1081 n. 4 (3d Cir.1995) [530]*530(citing Government of Virgin Islands v. Gereau, 502 F.2d 914, 921 (3d Cir.1974)). The evidence presented by the government supports the District Court’s conclusion that the defendant distributed 800 kilograms of cocaine, and accordingly, we find no error.

The defendant argues that his distribution of cocaine to the confidential informant prior to March of 1999 is not conduct relevant to the charged offense. We review this argument for plain error, as it was not raised below. Fed.R.Crim.P. 52(b).

Relevant conduct includes not only all controlled substances involved “ ‘during the commission of the offense of conviction,’ but also those substances involved as ‘part of the same course of conduct or common scheme or plan as the offense of conviction.’ ” United States v. Boone, 279 F.3d 163, 178 (3d Cir.2002) (quoting U.S.S.G. § 1B1.3(a)(2)). The Sentencing Guidelines provide that “[t]ypes and quantities of drugs not specified in the count of conviction may be considered in determining the offense level.” U.S.S.G. § 2D1.1 n. 12; see also United States v. Boone, 279 F.3d 163, 178 (3d Cir.2002). As the same type of illegal narcotics was involved in the previous sales, as well as the same parties and distribution methods, we hold the District Court did not commit plain error.

Given the District Court’s finding that the defendant distributed hundreds of kilograms of cocaine to the confidential informant by March of 1999, defendant’s argument that he was not capable of delivering the amounts of cocaine found by the District Court must also fail.

The third issue presented for review is whether the District Court should have reduced defendant’s offense-level under the safety-valve provision of the Sentencing Guidelines, U.S.S.G. § 5C1.2. The safety-valve provision allows a two-level reduction from the offense level if the defendant meets five specified requirements, including the requirement that, no later than at the time of the sentencing hearing, the defendant must have “truthfully provided to the government all information and evidence the defendant has concerning the offense ... that [was] part of the same course of conduct or ...

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Related

United States v. Sergio Leon Rendon
415 F. App'x 359 (Third Circuit, 2011)

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Bluebook (online)
41 F. App'x 527, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rendon-ca3-2002.