United States v. Vilarchao

Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 95-50284 Summary Calendar __________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DANIEL VILARCHAO,

Defendant-Appellant.

______________________________________________

Appeal from the United States District Court for the Western District of Texas (SA-94-CA-571) ______________________________________________ April 30, 1996

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Daniel Vilarchao appeals from the district court's denial of

his motion to vacate, set aside, or correct his sentence pursuant

to 28 U.S.C. § 2255. Vilarchao argues that the district court

erred by denying him relief without conducting an evidentiary

hearing on the following ineffective assistance of counsel

allegations.

Vilarchao contends that counsel failed to properly prepare for

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. trial. Vilarchao's claim affords him no relief because he has

failed to demonstrate that the alleged inadequate preparation

prejudiced him. Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir.

1994); United States v. Kaufman, 858 F.2d 994, 1006 (5th Cir.

1988), cert. denied, 493 U.S. 895, 110 S.Ct. 245 (1989).

Vilarchao next argues that counsel's failure to object to

testimony that he would kill people over the loss of 400 kilograms

constituted ineffective assistance. The Government correctly

points out that the testimony in question refers to "the Colombian"

and does not identify Vilarchao. Additionally, we note that the

presentence report identifies Vilarchao as a native of Cuba who has

resided in the United States since 1961. Vilarchao has not shown

that counsel's failure to object constituted unprofessional conduct

or prejudiced him.

Vilarchao argues that counsel failed to object to the

admission into evidence of the small amount of cocaine found in his

wallet. On Vilarchao's direct appeal, in the context of addressing

the claim that the district court erred in admitting testimony

regarding the cocaine found in his wallet, this Court described the

evidence of Vilarchao's guilt as overwhelming, even without the

challenged evidence. United States v. Vilarchao, No. 90-5640

(January 24, 1992). Additionally, the court below opined that the

evidence at trial established that Vilarchao was responsible for

smuggling enormous amounts of cocaine into the United States. As

such, we agree with the district court's conclusion that Vilarchao

could not demonstrate prejudice on the basis of such a small amount

of cocaine.

2 Vilarchao also argues that counsel erred in using the term

"godfather" in her closing argument because it allowed the

prosecutor to "paint a picture" of him as the "godfather" in this

case during closing argument. As the district court stated, "[i]t

is clear that trial counsel's reference to the nonmovant as a

godfather to children was an attempt to show him in a parental and

caring light." Once again, because Vilarchao has failed to show

that the prosecutor's closing argument prejudiced him, this claim

is without merit.

Accordingly, Vilarchao's allegations did not warrant § 2255

relief, and the district court did not err in denying relief

without an evidentiary hearing. See United States v. Drummond, 910

F.2d 284, 285 (5th Cir. 1990), cert. denied, 498 U.S. 1104, 111

S.Ct. 1006 (1991).

AFFIRMED.