U.S. v. Flores-Ochoa, FLORES-OCHO

• Decision Date: 24 April 1998
• Docket Number: D,FLORES-OCHO,No. 97-11393,97-11393
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Danielefendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1022

139 F.3d 1022

UNITED STATES of America, Plaintiff-Appellee, v. Daniel FLORES-OCHOA, Defendant-Appellant.

No. 97-11393.

United States Court of Appeals, Fifth Circuit.

April 24, 1998.

Christopher Allen Curtis, Asst. U.S. Atty., Dallas, TX, for Plaintiff-Appellee.

Timothy William Crooks, Fort Worth, TX, for Ochoa.

Appeal from the United States District Court for the Northern District of Texas.

Before GARWOOD, SMITH and EMILIO M. GARZA, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

I.

In June 1995, Daniel Flores-Ochoa pleaded guilty to possession of marihuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). On August 28, 1995, he was sentenced to fifty months' imprisonment and four years' supervised release. This sentence was ten months less than the mandatory minimum sentence of sixty months, but the court applied a provision of the Violent Crime Control and Law Enforcement Act of 1994 (the "Act") that allows a sentence lower than the mandatory minimum in certain cases.

At the time of the sentencing hearing, the Sentencing Commission had proposed U.S.S.G. § 2D1.1(b)(4) (1995), which provided for a two level reduction in the offense level if the criteria described in the Act are met. If accepted by Congress, the guideline would have become effective on November 1, 1995. The parties agree that, had Flores-Ochoa been sentenced when § 2D1.1(b)(4) was in effect, he would have qualified for the two-level reduction.

Although Flores-Ochoa did not initially appeal his sentence, he filed a 28 U.S.C. § 2255 motion on September 12, 1996, alleging, among other things, that he had received ineffective assistance of counsel because he was not informed of his right to appeal. After a denial of the motion, an appeal to this court, a remand, and an evidentiary hearing, the district court concluded that Flores-Ochoa was correct and that he was therefore entitled to an out-of-time appeal.

We now review, in accordance with this decision of the district court, Flores-Ochoa's appeal of his original sentence on the ground that the Sentencing Commission should have made § 2D1.1(b)(4) retroactive. This is a new argument, not made before the sentencing court, that must be reviewed under the plain error standard of United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), and United States v. Calverley, 37 F.3d 160, 162 (5th Cir.1994) (en banc).

II.

A.

We do not accept Flores-Ochoa's contention that we may review de novo the Commission's allegedly ultra vires act because it affects the jurisdiction of the sentencing court. Irrespective of whether the Commission acted within its authority, the district court had ample authority to sentence Flores-Ochoa, and the only question is whether the court properly interpreted the Guidelines. Accordingly, we review this argument under a plain error standard.

Flores-Ochoa also sought, in his § 2255 motion, to vacate his conviction on the grounds that his trial counsel erred by failing to ask for a reduction for mitigating role and by failing to move for a downward departure under the safety valve provision. In addition to his out-of-time appeal, Flores-Ochoa now argues, apparently relying upon the record in the § 2255 hearing, that his counsel was ineffective for failing to ask for a continuance until after the effective date of § 2D1.1(b).

For purposes of this appeal, we will assume, arguendo, that Flores-Ochoa's allegation in the district court that his trial counsel erred in failing to pursue a "downward departure" under the safety valve encompassed a claim that counsel erred in failing to seek a continuance. Assuming, without deciding, that this is the correct approach, we review the denial of § 2255 relief de novo.

B.

Flores-Ochoa argues that Congress demonstrated its intent to have the Commission's guidelines take effect simultaneously with the effective date of the Act. This argument has some merit; the Act states that the Commission "shall promulgate guidelines ... to carry out the purpose of this section," and also permits the Commission to promulgate emergency guidelines if "necessary to do so" in order that the newly promulgated guidelines "may take effect on the effective date" of the safety valve amendment. Pub.L. 103-322 § 80001(b) (1994).

In accordance with this request, the Commission promulgated U.S.S.G. § 5C1.2 and accompanying application notes, effective September 23, 1994. This guideline, which became effective on the effective date of the Act, mimicked the language of the Act, allowing courts to sentence within the normal guideline range rather than apply a statutory minimum where the safety valve criteria applied. Flores-Ochoa obtained the benefit of this guideline, receiving a sentence ten months lower than that required by the mandatory minimum for marihuana trafficking.

In May 1995, the Commission submitted U.S.S.G. § 2D1.1(b)(4) ¹ to Congress. This was an additional measure, passed under the authority of the safety valve legislation but unnecessary to its basic objective of making the mandatory minimum sentence inapplicable in certain cases. It provided a two-level reduction for those with offense levels above 26 who met the criteria of § 5C1.2. The Commission chose not to list this guideline among those made retroactive by U.S.S.G. § 1B1.10.

Flores-Ochoa's creative argument does not convince us to apply § 2D1.1(b)(4) retroactively in the face of the Commission's plain desire to the contrary. The Commission immediately enacted an enabling guideline dealing with Congress's expressed area of concern. Later, after further reflection, the Commission decided that an additional provision might be warranted in certain cases, and adopted it.

Nothing in the Act even suggests that Congress would not have wanted the Commission to enact additional, non-retroactive guidelines under the Act, once it had enabled the basic provisions of the legislation itself. Applying the Calverley plain error standard, we cannot say that the sentencing court committed any error in refusing to make § 2D1.1(b)(4) retroactive, let alone that it was obvious.

III.

Flores-Ochoa argues that his counsel was unconstitutionally ineffective for failing to move for a continuance in order that Flores-Ochoa might be sentenced after § 2D1.1(b)(4) took effect. Whether counsel was ineffective is a mixed question of law and fact reviewed de novo. See Johnson v. Scott, 68 F.3d 106, 109 (5th Cir.1995), cert. denied, 517 U.S. 1122, 116 S.Ct. 1358, 134 L.Ed.2d 525 (1996)...