United States v. Sandoval

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 18, 2002
• Docket: 01-20819
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-20819 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ZARAGOSA SANDOVAL,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-95-CR-142-20 -------------------- June 18, 2002

Before DAVIS, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Zaragosa Sandoval appeals his conviction and sentence

following his guilty plea for possession with intent to

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

(b)(1)(B).

Sandoval first argues that his guilty plea was rendered

invalid because his trial counsel rendered ineffective assistance

in estimating the sentence he would receive under the Sentencing

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 01-20819 -2-

Guidelines. An erroneous estimate by counsel as to the length of

an expected sentence is not necessarily indicative of ineffective

assistance. Beckham v. Wainwright, 639 F.2d 262, 265 (5th Cir.

1981). Because Sandoval has not demonstrated that trial counsel

acted unreasonably in estimating Sandoval’s sentence under the

guidelines with the information available to him at the time of

the plea, Sandoval cannot prevail on his ineffective assistance

claim. See Strickland v. Washington, 466 U.S. 668, 687-94

(1984). To the extent that Sandoval challenges counsel’s

effectiveness, we affirm the judgment of the district court.

Sandoval next argues that Federal Rule of Criminal Procedure

32(c)(2), his right to due process and his confrontation rights

were violated when he was denied discovery and Jencks Act

material regarding allegedly disputed sentence facts found in the

pre-sentence report. He also contends that his sentence was

violative of Apprendi v. New Jersey, 530 U.S. 466 (2000) because

the factors used to enhance his sentence were not presented to a

jury and proven beyond a reasonable doubt. He concedes that his

Apprendi argument is foreclosed by our precedent in United States

v. Clinton, 256 F.3d 311, 314 (5th Cir.), cert. denied, 122 S.

Ct. 492 (2001), but he raises the issue in an attempt to preserve

it for further review.

As part of his plea agreement, Sandoval waived his right to

appeal his sentence. Because the record shows that Sandoval’s

appeal waiver was valid, see United States v. Portillo, 18 F.3d No. 01-20819 -3-

290, 292 (5th Cir. 1994), the portion of Sandoval’s appeal

relating to his sentence is dismissed. See United States v.

Martinez, 263 F.3d 436, 438 (5th Cir. 2001).

AFFIRMED IN PART; DISMISSED IN PART.