United States v. Sanchez

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS AUG 8 1997 TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 96-2153 v. (D.C. No. CIV-95-1299-LH) (D. N.M.) RUBEN GREGORY SANCHEZ,

Defendant-Appellant.

ORDER AND JUDGMENT *

Before BRORBY, EBEL and KELLY, 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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

We hereby withdraw the order and judgment filed in this case on July 11,

1997.

This order and judgment is not binding precedent except under the *

doctrines of law of the case, res judicata and 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. On June 28, 1993, Mr. Ruben G. Sanchez pled guilty to unlawfully,

knowingly, and intentionally manufacturing more than one kilogram of a mixture

containing a detectable amount of methamphetamine in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(A) (1994), and to unlawfully and knowingly maintaining a

place for the purpose of unlawfully manufacturing, storing, distributing, and using

a methamphetamine mixture in violation of 21 U.S.C. § 856 (1994). Under the

plea agreement entered into pursuant to Fed. R. Crim. P. 11(e)(1)(C), Mr. Sanchez

and the government agreed to a sentence of ten years imprisonment. See Fed. R.

Crim. P. 11(e)(1)(C) (in a plea agreement, the government and the defendant may

"agree that a specific sentence is the appropriate disposition of the case"). On

September 10, 1993, the district court sentenced him to 120 months imprisonment

and five years of supervised release pursuant to the plea agreement.

On October 27, 1995, Mr. Sanchez filed a motion under 28 U.S.C. § 2255

to vacate, set aside or correct his sentence. Mr. Sanchez alleged his counsel was

ineffective for failing to challenge the quantity of methamphetamine used by the

district court in calculating his sentence and for failing to raise the relevant facts

entitling him to a downward departure for diminished capacity, acceptance of

responsibility, and aberrant behavior.

-2- On March 11, 1996, the magistrate judge issued his Findings and

Recommended Disposition recommending Mr. Sanchez's motion be denied. The

magistrate judge found the government case was strong; if convicted at trial, Mr.

Sanchez faced a possible sentence of 151-188 months imprisonment; faced with

this possibility, Mr. Sanchez's counsel and the government entered into a plea

agreement with a stipulated sentence of ten years (120 months) imprisonment; the

district court sentenced Mr. Sanchez to the stipulated amount of time; and any

argument by Mr. Sanchez's counsel to depart downward from the agreed upon

sentence would have been a breach of the plea agreement. The magistrate judge

concluded Mr. Sanchez's counsel's performance did not fall below an objective

standard of reasonableness nor was there a reasonable probability that, but for

counsel's alleged errors, Mr. Sanchez would have proceeded to trial rather than

plead guilty. After de novo review, the district court adopted the magistrate

judge's recommendation, denied Mr. Sanchez's § 2255 motion, and dismissed the

action with prejudice.

On appeal, Mr. Sanchez, appearing pro se, challenges the district court's

denial of his § 2255 motion. Mr. Sanchez reiterates his contention his counsel

was ineffective for failing to challenge the quantity of methamphetamine used to

-3- calculate his sentence. 1 When reviewing the denial of a § 2255 motion, we

review the district court's legal conclusions de novo and its findings of fact for

clear error. United States v. Cox, 83 F.3d 336, 338 (10th Cir. 1996). "A claim of

ineffective assistance of counsel presents a mixed question of law and fact which

we review de novo." Brewer v. Reynolds, 51 F.3d 1519, 1523 (10th Cir. 1995),

cert. denied, 116 S. Ct. 936 (1996).

After a de novo review of the record, we hold the district court did not err

in its findings of facts nor in its application of the law. Therefore, we affirm the

district court's dismissal of Mr. Sanchez's § 2255 motion for substantially the

reasons set forth in the magistrate judge's Findings and Recommended Disposition

of March 11, 1996, and the district court's Order of April 18, 1996, copies thereof

being attached.

1 For the first time on appeal, Mr. Sanchez challenges the type of methamphetamine used to calculate his sentence. However on appeal, we do not consider issues not raised or abandoned in the district court absent unusual circumstances not present in this case. In re Walker (Walker v. Mather), 959 F.2d 894, 896 (10th Cir. 1992).

-4- The appeal is AFFIRMED. 2

Entered for the Court

WADE BRORBY United States Circuit Judge

2 Due to the Supreme Court's recent decision in Lindh v. Murphy, 117 S. Ct. 2159 (1997), the Anti-Terrorism and Effective Death Penalty Act of 1996 does not apply to cases such as this, that were pending on the effective date of the Act, April 24, 1996. Therefore, Mr. Sanchez is not required to obtain a certificate of appealability in order for us to reach the merits of his appeal.

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