USA v. Rivera-Sanchez

• Decision Date: 27 April 2000
• Docket Number: No. 99-10243,D,RIVERA-SANCHE,99-10243
• Citation: 222 F.3d 1057
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. PABLOefendant-Appellant. Office of the Circuit Executive
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1057

222 F.3d 1057 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. PABLO RIVERA-SANCHEZ, Defendant-Appellant.

No. 99-10243

Office of the Circuit Executive

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted April 27, 2000--San Francisco, California

Submission Vacated May 2, 2000

Resubmitted June 29, 2000

Filed August 2, 2000

Scott M. McNamara, Tucson, Arizona, for the defendant-appellant.

Richard E. Gordon, Assistant United States Attorney, and Virginia C. Kelly, Assistant United States Attorney, District of Arizona, Tucson, Arizona, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona, D.C. No. CR-98-01101-FRZ; Frank R. Zapata, District Judge, Presiding

Before: Betty B. Fletcher, Arthur L. Alarcon, Michael Daly Hawkins, Circuit Judges.

ALARCON, Circuit Judge:

Defendant Pablo Rivera-Sanchez ("Rivera-Sanchez") appeals from the judgment of conviction entered following his plea of guilty to the crime of entering the United States, after being deported, without the express consent of the Attorney General. The single-count indictment and the judgment both allege that Rivera-Sanchez violated 8 U.S.C. SS 1326(a) and 1326(b)(2). Rivera-Sanchez contends that his first attorney's inadequate explanation of the Government's plea offer deprived him of the effective assistance of counsel. He also maintains that we must vacate the judgment of conviction and remand for re-sentencing because S 1326(b)(2) does not set forth a punishable offense. We hold that Rivera-Sanchez failed to demonstrate that he was ineffectively represented by counsel. We therefore affirm the judgment of conviction pursuant to S 1326(a). We remand the case to the district court, however, to correct the judgment and strike any reference to S 1326(b)(2). Rivera-Sanchez also appeals from the sentence imposed by the district court because it denied his request for a downward departure on the basis of ineffective assistance of counsel. We conclude that we have no jurisdiction to consider the merits of this contention.

I

Pablo Rivera-Sanchez was arrested by U.S. Border Patrol agents after he entered the United States east of Nogales, Arizona on August 1, 1998. He admitted that he was a citizen of Mexico and that he did not have permission to enter the United States. A computer check revealed that RiveraSanchez had been previously deported from the United States because he had committed an aggravated felony. The complaint against Rivera-Sanchez charged him with a single count of illegally re-entering the country after having been deported.

On August 17, 1998, the Government sent a letter to Rivera-Sanchez's first attorney, David Aguilar ("Aguilar"), in which it informed him it would recommend a four-level departure if Rivera-Sanchez would enter a guilty plea. This downward departure would result in a sentencing range of 30 to 37 months. The Government's letter provided that the offer would be withdrawn on August 20, 1998. Rivera-Sanchez did not accept this agreement. On September 9, 1998, RiveraSanchez was indicted by the grand jury. The indictment alleges that Rivera-Sanchez "entered, attempted to enter, and was found in the United States of America after having been denied admission, excluded, deported and removed therefrom . . . in violation of Title 8, United States Code, Sections 1326(a) and 1326(b)(2)."

Rivera-Sanchez wrote several letters to the district court complaining about his lack of contact with Aguilar in which he requested that the court appoint new counsel for him. On October 30, 1998, the district court held a status hearing to discuss whether new defense counsel ought to be appointed, and relieved Aguilar of any further duty in the case. The court appointed Scott McNamara as Rivera-Sanchez's new counsel on November 10, 1998.

Mr. McNamara asked the Government to reinstate the plea offer. The Government refused. On December 15, 1998, Rivera-Sanchez pled guilty as charged without any plea agreement. On February 17, 1999, the district court conducted a sentencing proceeding and heard argument on RiveraSanchez's objections to the presentence report. The district court refused to grant a departure based on Rivera-Sanchez's claim that Aguilar's representation regarding the plea agreement was ineffective. It granted a two-level downward departure, however, for cultural assimilation. The district court sentenced Rivera-Sanchez to thirty-seven months in prison and three years of supervised release. Rivera-Sanchez has timely appealed. We have jurisdiction pursuant to 28 U.S.C. S 1291.

II

Rivera-Sanchez contends that Aguilar deprived him of the effective assistance of counsel because he failed to explain adequately the plea agreement offered by the Government. This alleged ineffective assistance he asserts, caused him to reject the plea agreement and to receive a more severe punishment than the sentence offered by the Government. He argues that because a defendant never seeks additional time in prison it is clear that, had he understood the offered plea agreement, he would have accepted it.

Typically, claims of ineffective assistance of counsel are inappropriate on direct appeal and should be raised, instead, in habeas corpus proceedings. See United States v. Ross, 206 F.3d 896, 900 (9th Cir. 2000). We will only review ineffective assistance claims on direct appeal where the record is "sufficiently developed to permit review and determination of the issue," or "the legal representation is so inadequate that it obviously denies a defendant his Sixth Amendment right to counsel." Id. (quoting United States v. Robinson, 967 F.2d 287, 290 (9th Cir. 1992)) (internal quotations omitted). Here, the record below is sufficient for us to review the issue of ineffective assistance of counsel because the district court held a hearing, prior to sentencing Rivera-Sanchez, to examine the question whether Aguilar's representation was ineffective in order to determine whether a downward departure was warranted on that basis. Rivera-Sanchez and Aguilar both testified at the hearing regarding Aguilar's efforts to communicate the terms of the proposed plea agreement to RiveraSanchez. We review a claim of ineffective assistance of counsel de novo. See United States v. Blaylock, 20 F.3d 1458, 1464-65 (9th Cir. 1994). After reviewing the sentencing hearing transcripts, we conclude that Rivera-Sanchez has failed to demonstrate that he was deprived of the effective assistance of counsel.

To establish ineffective assistance of counsel, RiveraSanchez must show that: "(1) his attorney's performance was unreasonable under prevailing professional standards; and (2) that there is a reasonable probability that but for counsel's unprofessional errors, the result would have been different." Id. at 1465 (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)) (internal quotations and citations omitted). Rivera-Sanchez argues that, but for Aguilar's ineffective assistance of counsel, he would have accepted the Government's plea agreement and received a lower sentence. Thus, he argues that the outcome of sentencing would have been different. He does not argue that his counsel's representation affected the judgment of conviction. Indeed, he cannot make that argument because he pled guilty notwithstanding the withdrawal of the plea agreement. Thus, Rivera-Sanchez has failed to make a claim of ineffective assistance of counsel warranting a reversal of his judgment of conviction.

Rivera-Sanchez has also failed to demonstrate that he received ineffective assistance of counsel warranting a reversal of his sentence. In Blaylock, we held that the defendant received ineffective assistance when his attorney failed to inform him of a plea offer. See id. at 1466. In the case at bar, however, Aguilar communicated the terms of the plea offer to Rivera-Sanchez. We must decide, therefore, whether Aguilar communicated the plea offer so insufficiently under prevailing professional standards that he provided ineffective assistance to Rivera-Sanchez, and, if so, whether Rivera-Sanchez would have accepted the offer had Aguilar explained the agreement sufficiently.

The Tenth Circuit has considered a case where the attorney communicated the plea offer to the defendant but the defendant claimed that the communication was ineffective. See United States v. Carter, 130 F.3d 1432, 1441-42 (10th Cir. 1997). In Carter, the court noted that the attorney advised the defendant of the sentence he might receive if he went to trial and urged the defendant to accept the offer. See id. at 1442. The court concluded that the record reflected that the defendant had full knowledge of the ramifications of his decision and decided to reject the plea offer, and therefore held that the defendant did not demonstrate ineffective assistance of counsel. See id.

Here, Aguilar spoke with Rivera-Sanchez on several occasions regarding the terms of the plea agreement. He explained to Rivera-Sanchez that he had a right to a trial, but that under the Sentencing Guidelines he would receive a greater sentence than that set forth in the plea agreement if he rejected it, and that it would be in his best interest to accept it. The record shows that Aguilar informed Rivera-Sanchez of the crime alleged in the complaint, the sentence he would receive under the plea agreement, and that he faced a more severe punishment if he didn't accept the agreement.

Rivera-Sanchez argues that Aguilar should have sent him a letter explaining the agreement, including a copy of the sentencing chart, and provided him with a copy of the Sentencing Guidelines in Spanish. Rivera-Sanchez also asserts that Aguilar, upon realizing that the case was a "slam-dunk loser," and that his communications with Rivera-Sanchez regarding the plea agreement had broken down, should have withdrawn as counsel before the plea agreement expired to allow RiveraSanchez to get a...