United States v. Valenciano

126 F. App'x 883
CourtCourt of Appeals for the Tenth Circuit
DecidedFebruary 1, 2005
Docket02-2296
StatusPublished

This text of 126 F. App'x 883 (United States v. Valenciano) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth 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. Valenciano, 126 F. App'x 883 (10th Cir. 2005).

Opinion

*884 ORDER

SEYMOUR, Circuit Judge.

Richard Valenciano was convicted of possession of a firearm by a former felon in violation of 18 U.S.C. § 922(g)(1) and § 924(e), and sentenced to 210 months incarceration. His counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and moved for leave to withdraw as counsel. We grant counsel’s motion to withdraw and dismiss the appeal.

Anders holds that if counsel finds a case to be wholly frivolous after conscientious examination, he may so advise the court and request permission to withdraw. Counsel must also submit to both the court and his client a brief referring to anything in the record arguably supportive of the appeal. The client may then raise any point he chooses, and the court thereafter must undertake a complete examination of all the proceedings and decide whether the appeal is in fact frivolous. If it so finds, it may grant counsel’s request to withdraw and dismiss the appeal. Id. at 744, 87 S.Ct. 1396. Pursuant to Anders, counsel provided Mr. Valenciano with a copy of his appellate brief. Mr. Valenciano responded by filing a pro se reply brief, in which he raised several issues.

Mr. Valenciano first contends the government failed to present sufficient evidence to sustain his conviction. We review de novo a sufficiency of the evidence challenge, United States v. Hanzlicek, 187 F.3d 1228, 1239 (10th Cir.1999), and Mr. Valenciano is “faced with a high hurdle” to overcome, United States v. Voss, 82 F.3d 1521, 1524 (10th Cir.1996). We must examine the evidence adduced at trial in the light most favorable to the government, determining only whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Hanzlicek, 187 F.3d at 1239. We consider both direct and circumstantial evidence, as well as any reasonable inferences to be drawn from that evidence. United States v. Davis, 1 F.3d 1014, 1017 (10th Cir.1993). In resolving a sufficiency challenge, we do not weigh conflicting evidence or consider the credibility of witnesses. United States v. Pappert, 112 F.3d 1073, 1077 (10th Cir.1997). It is the jury’s prerogative as fact finder to resolve conflicting testimony, weigh the evidence, and draw inferences from the facts presented. United States v. Nieto, 60 F.3d 1464, 1469 (10th Cir.1995). A review of the trial record under these standards establishes that the evidence set forth by the government was more than sufficient for a reasonable juror to find Mr. Valenciano guilty of being a felon in possession of a firearm.

Mr. Valenciano also argues the district court erred by refusing to give a clarifying instruction concerning the word “knowingly.” At the close of the evidence, the district court informed the jury that in order to find Mr. Valenciano guilty, the jurors must be convinced beyond a reasonable doubt that he knowingly possessed a firearm. Rec., vol. IV at 86. The court instructed that “[t]he word ‘knowingly,’ as that term has been used from time to time in these instructions, means that the act was done voluntarily and intentionally, not because of mistake or accident.” Id. at 88. Mr. Valenciano failed to challenge the jury instructions at trial. See id., vol. V at 2. He has therefore waived his right to do so absent a demonstration of plain error. United States v. Allen, 129 F.3d 1159, 1162 (10th Cir.1997). “Plain error is that which is obvious, or which seriously affects the fairness or integrity of the trial.” United States v. Enjady, 134 F.3d 1427, 1435 (10th Cir.1998). The district court gave clear instructions regarding the government’s *885 burden of proof on the felon in possession charge, including a comprehensive definition of the term “knowingly.” Mr. Valenciano has failed to show how refusal to clarify the term “knowingly” constitutes error.

Mr. Valenciano next complains that he was denied his Sixth Amendment right to effective assistance of counsel. This court has repeatedly held that ineffective assistance claims must be brought in collateral proceedings, not on direct appeal. United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir.1995). “Such claims brought on direct appeal are presumptively dismissible, and virtually all will be dismissed.” Id.; see also United States v. Coleman, 9 F.3d 1480, 1487 (10th Cir. 1993). Mr. Valenciano has failed to show that his claim qualifies as one of those “rare instances” in which we should consider an ineffective counsel challenge on direct review. Galloway, 56 F.3d at 1240-41.

Mr. Valenciano also contends the Allen instruction given by the district court was unduly coercive. 1 But this court has previously approved Allen instructions containing similar language. See, e.g., United States v. Reed, 61 F.3d 803, 805 & n. 5 (10th Cir.1995); United States v. Rodriguez-Mejia, 20 F.3d 1090, 1091 (10th Cir.1994). “The Allen charge [ ] given was evenhanded; it did not presume that the majority favored a guilty verdict; and it emphasized that no juror was expected to yield a conscientious conviction on the evidence.” Reed, 61 F.3d at 805. We have no difficulty concluding that the wording of the Allen instruction given by the district court was not impermissibly coercive.

Finally, Mr. Valenciano submits that he did not voluntarily waive his Fifth Amendment privilege against self-incrimination and that the district court erred in permitting self-incriminatory statements he made to a police officer to be used against him at trial. He bases his voluntariness challenge on (1) the fact that the interrogating officer, Gary Garcia, was his first cousin 2 and (2) that he had consumed a considerable amount of alcohol earlier in the evening.

We review

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Related

Miranda v. Arizona
384 U.S. 436 (Supreme Court, 1966)
Anders v. California
386 U.S. 738 (Supreme Court, 1967)
Colorado v. Spring
479 U.S. 564 (Supreme Court, 1987)
Morris v. United States
536 U.S. 933 (Supreme Court, 2002)
United States v. Hanzlicek
187 F.3d 1228 (Tenth Circuit, 1999)
United States v. Jerry Craig Coleman
9 F.3d 1480 (Tenth Circuit, 1993)
United States v. Amador Rodriguez-Mejia
20 F.3d 1090 (Tenth Circuit, 1994)
United States v. George Don Galloway
56 F.3d 1239 (Tenth Circuit, 1995)
United States v. Isidro Nieto
60 F.3d 1464 (Tenth Circuit, 1995)
United States v. Dwight Reed
61 F.3d 803 (Tenth Circuit, 1995)
United States v. John J. Pappert
112 F.3d 1073 (Tenth Circuit, 1997)
United States v. Sharon Kay Allen
129 F.3d 1159 (Tenth Circuit, 1997)
United States v. Kerry Neil Enjady
134 F.3d 1427 (Tenth Circuit, 1998)
United States v. Phouc H. Nguyen, A/K/A Jimmy Nguyen
155 F.3d 1219 (Tenth Circuit, 1998)
United States v. Morris
287 F.3d 985 (Tenth Circuit, 2002)

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Bluebook (online)
126 F. App'x 883, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-valenciano-ca10-2005.