United States v. Sanchez

Opinion

F I L E D United States Court of Appeals Tenth Circuit PUBLISH JUN 11 1998 UNITED STATES COURT OF APPEALS PATRICK FISHER Clerk TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. Nos. 97-1219 & ANTHONY EDWARD SANCHEZ, 97-1233 a/k/a Antonio Edward Sanchez,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. Nos. 97-CR-35-D & 96-CR-338-D)

Submitted on the briefs:

Henry L. Solano, United States Attorney, Andrew A. Vogt, Assistant U.S. Attorney, Denver, Colorado, for Plaintiff-Appellee.

David J. Richman of Burns, Figa, & Will, P.C., Englewood, Colorado, for Defendant-Appellant.

Before PORFILIO, BARRETT, and HENRY, Circuit Judges.

HENRY, Circuit Judge. After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. These cases are

therefore ordered submitted without oral argument.

In these consolidated direct appeals, defendant argues 1) the district court

erred in imposing a sentence exceeding the applicable sentencing guideline range,

pursuant to a Fed. R. Crim. P. 11(e)(1)(C) plea agreement; and 2) defense counsel

provided ineffective assistance at sentencing. We lack jurisdiction to review

defendant’s challenge to his sentence because he does not assert either that the

sentence imposed was in violation of the law or that the sentence resulted from a

misapplication of the guidelines. See 18 U.S.C. § 3742(a)(1) & (2), (c)(1). We

conclude his ineffective assistance claim is without merit.

I. JURISDICTION TO CHALLENGE SENTENCE

18 U.S.C. § 3742 provides for only limited appellate review of federal

sentences. See Koon v. United States, 518 U.S. 81, 96 (1996). Section

3742(c)(1) provides that, where, as here, defendant received the specific sentence

provided by a Rule 11(e)(1)(C) plea agreement, he “may not file a notice of

-2- appeal” under § 3742(a)(3) or (4). 1 See United States v. Denogean, 79 F.3d 1010,

1013 (10th Cir. 1996); cf. United States v. Veri, 108 F.3d 1311, 1315 (10th Cir.

1997) (where defendant received sentence called for in Rule 11(e)(1)(C) plea

agreement, this court did not have appellate jurisdiction to review sentence).

A defendant receiving a sentence under a Rule 11(e)(1)(C) plea agreement

may appeal only when his sentence “was imposed in violation of law [or] was

imposed as a result of an incorrect application of the sentencing guidelines,” 18

U.S.C. § 3742(a)(1) & (2). See Denogean, 79 F.3d at 1013-14. In this appeal,

defendant does not argue that his sentence was in violation of law. See, e.g.,

United States v. Littlefield, 105 F.3d 527, 528 (9th Cir.) (sentence within

statutory maximum did not violate law for purposes of § 3742(a)), cert. denied,

117 S. Ct. 2423 (1997)..

Nor does he assert that the sentence imposed resulted from a misapplication

of the guidelines. When initially proposed, the parties mistakenly believed, and

the plea agreement erroneously indicated, that the 206-month sentence provided

in the agreement was within the applicable guideline range. Nonetheless, at the

time the district court accepted the plea agreement at the sentencing hearing, all

1 Subsections (a)(3) and (4) of § 3742 allow an appeal from a sentence that “is greater than the sentence specified in the applicable guideline range [or] was imposed for an offense for which there is no sentencing guideline and [the sentence] is plainly unreasonable.”

-3- parties were aware that, under the proper application of the guidelines, the

206-month sentence was actually in excess of the applicable sentencing range.

Defendant had the opportunity to withdraw his plea in light of the initial

miscalculation of the sentencing range, but he declined to do so and again agreed

to the imposition of the 206-month sentence. See United States v. Libretti, 38

F.3d 523, 529-30 (10th Cir. 1994) (holding defendant was bound by plea

agreement, where district court thoroughly assessed whether defendant understood

consequences of guilty plea), aff’d, 516 U.S. 29 (1995).

On appeal, therefore, defendant challenges only the propriety of the district

court’s imposition of a sentence in excess of the applicable guideline range,

pursuant to the express terms of the Rule 11(e)(1)(C) agreement. Section

3742(c)(1) specifically precludes defendant’s appeal based upon this issue. See

United States v. Trujeque, 100 F.3d 869, 870 (10th Cir. 1996) (in dicta); United

States v. Prieto-Duran, 39 F.3d 1119, 1120 (10th Cir. 1994).

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant also argues that defense counsel provided ineffective assistance

at sentencing by failing to detect the errors in the initial calculation of the

sentencing range and in failing to object to the district court’s imposition of a

sentence in excess of the applicable guideline range. Deeming these claims to be

-4- the “rare [ineffective assistance] claims which are fully developed in the record

[and which thus] may be brought . . . on direct appeal,” United States v.

Galloway, 56 F.3d 1239, 1242 (10th Cir. 1995) (en banc), we conclude defendant

is not entitled to relief because he is unable to show the requisite prejudice

resulting from counsel’s purportedly ineffective representation, see Strickland v.

Washington, 466 U.S. 668, 692 (1984). Cf. United States v. Carter, 130 F.3d

1432, 1442 (10th Cir. 1997) (counsel did not provide ineffective assistance where

defendant, “armed with full knowledge of the ramifications of his decision,”

rejected plea agreement), petition for cert. filed (U.S. Apr. 20, 1998)

(No. 97-8838).

We, therefore, DISMISS defendant’s claim challenging his sentence, for

lack of appellate jurisdiction, and otherwise AFFIRM the judgment of the United

States District Court for the District of Colorado.

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