U.S. v. Cruz-Mendoza

• Decision Date: 23 June 1998
• Docket Number: CRUZ-MENDOZ,No. 97-15918,D,97-15918
• Citation: 147 F.3d 1069
• Parties: 98 Cal. Daily Op. Serv. 4841, 98 Daily Journal D.A.R. 6830 UNITED STATES of America, Plaintiff-Appellee, v. Marcosefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1069

147 F.3d 1069

98 Cal. Daily Op. Serv. 4841, 98 Daily Journal

D.A.R. 6830

UNITED STATES of America, Plaintiff-Appellee, v. Marcos CRUZ-MENDOZA, Defendant-Appellant.

No. 97-15918.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 10, 1998.

Decided June 23, 1998.

Peter Goldberger, Ardmore, Pennsylvania, for the defendant-appellant.

Reese V. Bostwick, Assistant United States Attorney, Tucson, Arizona, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona; Richard M. Bilby, District Judge, Presiding. D.C. Nos. CV 96-708-T RMB, CR-90-428-RMD.

Before: SCHROEDER, FARRIS and TASHIMA, Circuit Judges.

TASHIMA, Circuit Judge.

In 1991, Marcos Cruz-Mendoza (Cruz) was convicted of two drug offenses and sentenced to a 235-month term of imprisonment. That conviction and sentence were affirmed on direct appeal. United States v. Angulo-Ruiz, 978 F.2d 716 (table), 1992 WL 320963 (9th Cir.1992). Cruz then moved under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. The district court denied his § 2255 motion and Cruz now appeals. We affirm.

BACKGROUND

Beginning in September, 1990, Drug Enforcement Agency (DEA) agents conducted a series of meetings with Cruz's codefendants, Basilio Angulo-Ruiz (Angulo), Oscar Barnett-Inclan (Barnett) and Samuel Ortiz Espinosa (Ortiz). On September 26, DEA agents Moore and Thomas bought two kilograms of uniquely wrapped cocaine from Angulo. On October 10, DEA agents Moore and Thomas again met with Angulo and Barnett at Angulo's apartment to finalize an agreement to purchase a total of 110 kilograms of cocaine. Moore was given the option of purchasing the total in 10 kilogram lots or all at once. The agent selected the latter option.

It is undisputed that Cruz was in Angulo's apartment during this meeting and, according to Moore, Cruz was in charge of the transaction. Moore testified that Cruz said that he could get the 110 kilograms of cocaine. Moore also testified that Cruz stated that the two kilograms sold to Moore on September 26 came from the same lot as eight kilograms which Cruz had lost in a police raid. Moore testified that the unique wrappings of the two kilograms that he bought on September 26 matched the wrappings of the eight kilograms seized by police.

The exchange of drugs (110 kilograms of cocaine) for money ($2.5 million) was to take place on the next day, October 11. The transaction, however, did not occur. Angulo told Moore that Cruz's cocaine supplier suspected police surveillance of such a large transaction and refused to deliver.

Cruz was indicted on two counts with Angulo, Ortiz and Barnett. Count One charged At trial, Cruz presented two defenses. First, counsel argued that Cruz was an innocent bystander and not a participant in the October 10 transaction. Therefore, if there were a conspiracy, Cruz was not involved. Cruz testified on his own behalf that he was in the apartment on October 10 when the 110 kilogram transaction was agreed upon, but that he had no part in the drug deal. Barnett was called as a defense witness and he testified that Cruz had nothing to do with the transaction. Barnett also stated that neither he nor Angulo meant to deliver the cocaine on October 11 because they had no cocaine to sell at that time. Barnett admitted that he was arrested with 110 kilograms of cocaine on October 16, 1990, and had pled guilty to the same two counts that Cruz contested.

Cruz of conspiring between September 26, 1990, and October 11, 1990, to possess with intent to distribute five or more kilograms of cocaine, in violation of 21 U.S.C. § 841(b)(1)(A)(ii)(II). Count Two charged Cruz with possession with intent to distribute more than 500 grams but less than five kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1). Cruz's prosecution was severed from the other defendants.

The second defense strategy Cruz's counsel attempted to use was based on a misunderstanding of the indictment and the conspiracy laws. In closing argument, defense counsel argued that the conspiracy charged in Count One never existed, as a matter of law, because the transaction was never intended to occur, or could not occur, by the date the conspiracy ended, October 11, 1990. Counsel argued that Angulo and Barnett's intent on October 10 was to stall the agents until they could find a cocaine source at a later date. ¹ Counsel asked the court to charge the jury that there could have been no conspiracy if the jury found that the alleged co-conspirators had no intent or ability to sell cocaine on or before October 11, 1990. The court refused. ² Cruz was convicted on both counts.

At sentencing, the district court attributed a total of 112 kilograms of cocaine as "relevant," pursuant to U.S.S.G. § 1B1.3. The court concluded that even if the co-conspirators were lying about when and how much cocaine they could deliver, the amount promised was relevant to the sentence. The district court agreed with defense counsel that Cruz's Criminal History Category, category III, overstated the seriousness of Cruz's criminal history; however, it refused to depart downward, pursuant to U.S.S.G. § 4A1.3. ³ Cruz was sentenced to concurrent terms of 235 months imprisonment on each count.

Cruz raised three issues in his § 2255 motion which he continues to pursue on appeal: (1) Ineffective assistance of counsel; (2) Application of a post-sentencing amendment to the Sentencing Guidelines; and (3) Failure to grant a downward departure.

In denying Cruz's § 2255 motion, the district court concluded on the ineffective assistance of counsel claim that Cruz's counsel acted within the broad range of competency and that there was not a reasonable probability that, but for counsel's errors, the outcome would have been different. On the Guidelines amendment issue, the court concluded that a post-sentencing amendment to the Sentencing Guidelines did not apply on collateral review. The district court declined to reconsider the downward departure issue because it has been fully addressed on direct appeal. The district judge certified only the first two issues for appeal. See 28 U.S.C. § 2253(c)(3).

STANDARD OF REVIEW

A district court's decision to grant or deny a federal prisoner's petition for habeas

corpus is reviewed de novo. United States v. Pirro, 104 F.3d 297, 299 (9th Cir.1997). The court's factual findings are reviewed for clear error. United States v. Span, 75 F.3d 1383, 1386 (9th Cir.1996). ⁴

DISCUSSION

I. Ineffective Assistance of Counsel

A claim of ineffective assistance of counsel is a mixed question of law and fact reviewed de novo. Span, 75 F.3d 1383, 1387 (9th Cir.1996). It may be raised for the first time on a § 2255 motion. Id. To prevail on a claim of ineffective assistance of counsel, Cruz must show that: (1) his attorney's performance was unreasonable under prevailing professional standards; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. Id. A reasonable probability has been defined as "a probability sufficient to undermine confidence in the outcome." Id. (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Failure to make the required showing on either prong "defeats the ineffectiveness claim." Strickland, 466 U.S. at 700, 104 S.Ct. 2052. On the § 2255 motion, the district court concluded that even though counsel did not understand the law of conspiracy, he performed within an acceptable range.

Even assuming arguendo that defense counsel's performance fell below prevailing professional standards, Cruz is not entitled to have his conviction set aside because he cannot show that he was prejudiced by his counsel's errors. Cruz claims that if his counsel had not misunderstood the conspiracy law, there is a reasonable probability that the jury would have hung or acquitted him. We disagree. Cruz's main defense was that he was not involved in any drug deal and was merely an innocent bystander. The jury, however, found otherwise--that the government's witness, DEA agent Moore, was more credible than Cruz and Barnett.

If counsel had understood the conspiracy law, it is not clear what he could or should have done differently to defend Cruz. Cruz argues it was error for his counsel to ask Barnett about pleading guilty to conspiring to distribute cocaine and "open the door" for Barnett's testimony that he had pled guilty to Count One. The fact that Barnett pled guilty to Count One undercut Cruz's defense that the charged conspiracy did not exist as a matter of law. However, Cruz's main defense was that he was not involved in Barnett's drug activities, regardless of what those activities might have been. Barnett's testimony on cross-examination that he pled guilty to Count One and was caught with cocaine did not prejudicially influence Cruz's defense that he was merely an innocent bystander in the wrong place at the wrong time.

Defense counsel was also permitted to present his misguided theory of conspiracy law during closing argument. He argued to the jury that the government had not proved conspiracy because the sale never occurred. The confusion created in the minds of the jury undoubtedly assisted, rather than hurt, Cruz's chances of being acquitted. Because there was not a reasonable probability that, but for counsel's errors, the result of the trial would have been different, the district court did not err in concluding that this claim was meritless.

II. Misapplication of the Sentencing Guidelines

A. Amendment 518

We review de novo the district court's construction, interpretation and application of the Sentencing Guidelines. United States v. Basinger, 60 F.3d 1400 (9th Cir.1995). Cruz argues that the district court considered the wrong amount of cocaine when setting the base offense level. At sentencing, the district court found a total of 112 kilograms of cocaine "relevant" to the...