United States v. Rangel

• Decision Date: 01 April 2015
• Docket Number: No. 13–7445.,13–7445.
• Citation: 781 F.3d 736
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Abel Castillo RANGEL, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

781 F.3d 736

UNITED STATES of America, Plaintiff–Appellee

v.Abel Castillo RANGEL, Defendant–Appellant.

No. 13–7445.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 10, 2014.

Decided: April 1, 2015.

ARGUED:Sejal Jhaveri, University of Virginia School of Law, Charlottesville, Virginia, for Appellant. Stephen Wiley Miller, Office of the United States Attorney, Richmond, Virginia, for Appellee. ON BRIEF:Stephen L. Braga, Appellate Litigation Clinic, University of Virginia School of Law, Charlottesville, Virginia, for Appellant. Dana J. Boente, United States Attorney, Rebeca H. Bellows, Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellee.

Before DUNCAN, AGEE, and HARRIS, Circuit Judges.

Opinion

Affirmed by published opinion. Judge AGEE wrote the opinion, in which Judge DUNCAN and Judge HARRIS joined.

AGEE, Circuit Judge:

Abel Castillo Rangel was convicted in 2010 of three counts relating to marijuana trafficking and sentenced to 121 months of incarceration. He later filed a motion to vacate his conviction and sentence under 28 U.S.C. § 2255, alleging that his trial and appellate counsel had rendered constitutionally ineffective assistance. The district court denied his motion, and we granted a certificate of appealability identifying three issues: 1) whether Rangel's trial counsel was ineffective for not requesting an instruction that the jury find a drug weight based on the amount attributable to or reasonably foreseeable by Rangel; 2) whether his appellate counsel was ineffective for not raising the failure to request that instruction as an issue on direct appeal; and 3) whether his trial counsel was ineffective for failing to object to the drug weight and advisory guidelines range at sentencing. For the reasons explained below, we affirm the district court's judgment.

I. Background

On November 28, 1995, a federal grand jury in Alexandria, Virginia indicted Rangel and five co-defendants for crimes related to marijuana trafficking. The indictment charged Rangel in four counts: Count 1 for conspiracy to distribute over 1,000 kg of marijuana from 1990 through 1995 (21 U.S.C. § 846 ); Count 4 for possession with intent to distribute marijuana on September 30, 1992 (21 U.S.C. § 841(a) ); Count 7 for distribution of marijuana on October 1, 1992 (21 U.S.C. § 841(a) ); and Count 10, which was later dismissed, asserting forfeiture allegations.

Following his indictment, Rangel absconded to Texas, assumed an alias, and evaded arrest until March 23, 2010. He was subsequently tried by a jury and found guilty on the charges in the indictment on August 25, 2010.

A. Trial Evidence

The government presented six witnesses at trial: four law enforcement officers and two of Rangel's coconspirators. Fairfax County Detective Chester Toney testified that on September 30, 1992, he responded to a tip from a confidential informant about an upcoming marijuana transaction at a 7–Eleven. Detective Toney observed three men at that location, including an individual later identified as Michael Hillman, exit Rangel's pickup truck carrying a bag that appeared to contain marijuana. Police officers stopped and searched the three men and found 1.95 pounds (0.89 kg) of marijuana on Hillman. Rangel was not arrested at that time.

The next day, October 1, 1992, the informant told Detective Toney that a second marijuana transaction would take place that night at a McDonalds. At the McDonalds, Detective Toney saw Rangel's pickup truck and observed Rangel and another man exit the restaurant together. The men were then detained by police, and officers found Rangel with $1,369 in cash and the other man with $2,060 and 2 pounds (0.91 kg) of marijuana. Both men were arrested and charged.

Fairfax Police Department Lieutenant William Kitzerow testified about executing a search warrant for Rangel's residence on February 17, 1993, four and a half months after the McDonalds arrest. Officers found three bricks of marijuana on a shelf in a bedroom closet and three additional bags of marijuana in a black bag underneath some clothing. The combined marijuana weighed 5.25 pounds (2.39 kg).

Two of Rangel's alleged coconspirators, Michael Hillman and Ronnie Cadle, testified against him at trial about a broad marijuana trafficking operation. Hillman stated that he was involved with the trafficking operation from late 1990 through his September 30, 1992 arrest at the 7–Eleven. The group included approximately seven people, and Cadle and Hillman identified particular members of the operation by the names Lilo, Gringo, Leo, Flaco, and Rangel. Evidence seized from Rangel's apartment corroborated his association with some of these individuals: a phonebook found in the bedroom contained entries for “Laylo” and “Gringo,” and his wallet contained a business card for Lalo Maltos. J.A. 341.

Hillman testified that he first became involved with the group in December 1990, when he was approached by Lilo, who offered to front him marijuana for resale. Subsequently, Hillman met Lilo “hundreds” of times, “[g]enerally, at his trailer in Chantilly,” to buy single pounds of marijuana, which Lilo usually took from a stash of three to five pounds (1.36 to 2.27 kg). Id. at 113–14. In addition to Lilo, Hillman would see Gringo, Rangel, and others at the trailer. Specifically, Hillman testified that he “used to run into Abel [Rangel] at the trailer” and that “he sold me pot.” Id. at 120. He testified that his September 30, 1992 arrest was the result of his attempt to buy one kilogram of marijuana from Rangel on behalf of his uncle, one of the other men present at the 7–Eleven.

According to Hillman, at some point, Lilo offered him $8,000 to drive to Mexico to pick up marijuana. In Mexico, Hillman visited a “farm thing in the country” where he saw “a big patch of marijuana growing” that “might have been an acre or a half acre.” Id. at 117–18. He got two “potato sacks” of marijuana at “[m]aybe 20, 30, 40 pounds a sack” (13.6 to 22.7 kg). Id. at 118. A barn contained “tons of sacks” that he “th[ought]” contained marijuana, but which “[c]ould have been potatoes.” Id. Hillman then drove to a designated spot in the United States, where he retrieved the marijuana acquired in Mexico from a person who had carried it across the border for him in waterproof suitcases. Hillman and others packaged the marijuana in San Antonio, Texas and then took approximately 40 or 50 pounds (18.1 to 22.7 kg) of marijuana back to Virginia hidden in tires. During another trip, financed by Lilo, Hillman flew to Texas and rode a bus back to Virginia with approximately 30 to 40 pounds (13.6 to 22.7 kg) of marijuana.

Hillman estimated that he made between 5 and 10 trips to San Antonio to pick up marijuana. He also introduced Cadle to Lilo, and Cadle also began to make trips to San Antonio. Cadle testified that he made between 7 and 10 trips. At least one of Cadle's trips was with Hillman, but the extent of the overlap is unclear from their testimony.

Cadle testified that the group, including Rangel, instructed him to drive to San Antonio along a particular route. There, he would purchase marijuana, load it into the vehicle, and return to Virginia along another route that the group had also selected. Cadle testified that Rangel and Leo were his primary contacts for his final three trips. He “was paid a hundred dollars per pound” of marijuana he transported and made “25– to $50,000 in cash” bringing marijuana from Texas. Id. at 71, 100. Each trip normally involved 50 pounds (22.7 kg) of marijuana.

During one trip in August 1992, Rangel and Leo accompanied Cadle to San Antonio. Trooper Jackie Clark testified at trial that he stopped the men on Interstate 40 in Arkansas. He searched Cadle's car and found $21,000 in cash in two paper sacks under the backseat. He seized the $21,000, but let the three men go. They continued toward San Antonio. Based on what Cadle could understand of the conversation Rangel and Leo had in Spanish after the stop, he “came to the realization not to worry about it” because “[t]here was more money in the car.” Id. at 79–80. He believed the additional money was “in the range of between” $60,000 and $80,000. Id. at 79.

Cadle testified that upon their arrival in San Antonio, Rangel and Leo told him to leave his car and take a Greyhound bus back to Virginia. Cadle took the bus, carrying a suitcase containing approximately 50 pounds (22.7 kg) of marijuana. When he arrived in Virginia, Gringo picked him up at the bus station and took him to an apartment to meet Leo and Rangel. Cadle left the suitcase there, and two weeks later he drove back to San Antonio, retrieved his vehicle, and returned with another delivery of about 50 pounds of marijuana.

Cadle described the trip that led to his arrest in Mississippi on September 4, 1993. He flew to Dallas, Texas where he met Rangel and Leo, and they rented a 1988 Ford Thunderbird, which Cadle was tasked with driving back to Virginia. Officer David Pinson testified about stopping Cadle in the Thunderbird in Mississippi on September 4, 1993. Hidden between the car's grille and radiator, he found several packages of marijuana, weighing a total of 27 pounds (12.2 kg).

Cadle also testified that he went to Lilo's trailer in Chantilly “[d]ozens of times.” Id. at 74. Although Hillman testified Rangel was sometimes present when Hillman picked up pounds of marijuana, Cadle testified that he was “not really sure if [he] saw [Rangel] at the trailer” in Chantilly. Id.

B. Rangel's Verdict and Sentencing

The district court held a conference to discuss jury instructions, but Rangel's counsel did not request any instruction regarding drug weight. Specifically, he did not request an instruction that the jury determine drug weight based on Pinkerton principles—that is, based on drugs with which Rangel was directly involved or drugs that were reasonably foreseeable to him and in furtherance of the conspiracy. See Pinkerton v. United States, 328 U.S....