US v. Wilfredo Carranza

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:13-cr-00230-WO-2 Copies to all parties and the district court/agency. [999801371].. [14-4631]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4631

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILFREDO ANTONIO ROMERO CARRANZA, a/k/a Wilfredo Romero,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
William L. Osteen,
Jr., Chief District Judge. (1:13-cr-00230-WO-2)

Submitted:

March 25, 2016

Decided:

April 22, 2016

Before GREGORY and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Charles R. Brewer, Asheville, North Carolina, for Appellant.
Ripley Rand, United States Attorney, Kyle D. Pousson, Assistant
United
States
Attorney,
Greensboro,
North
Carolina,
for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Wilfredo Antonio Romero Carranza was convicted by a jury
and sentenced to an aggregate sentence of 84 months in prison
for one count each of conspiracy to operate a chop shop, in
violation of 18 U.S.C. § 371 (2012); operating a chop shop, in
violation of 18 U.S.C. §§ 2, 2322(a)(1) (2012); possession of
concealed

stolen

vehicles,

in

violation

of

18

U.S.C.

§ 2313

(2012); and three counts of transporting stolen motor vehicles,
in violation of 18 U.S.C. §§ 2, 2312 (2012) (the “chop shop
case”).

He now appeals his conviction and sentence, assigning a

number of errors.

Finding no reversible error, we affirm.

Carranza first asserts that the district court erred by
denying his motion to substitute counsel “in view of the serious
breakdown”
attorney.

in

his

relationship

with

his

court-appointed

We review the district court’s decision for abuse of

discretion.

See United States v. Perez, 661 F.3d 189, 191 (4th

Cir. 2011).

“In determining whether a district court abused its

discretion in denying a motion for new counsel,” we consider the
“timeliness of the motion; the adequacy of the court’s inquiry
into the defendant’s complaint; and whether the attorney/client
conflict

was

so

great

that

it

resulted

in

a

communication preventing an adequate defense.”
quotation marks omitted).

total

lack

of

Id. (internal

Carranza complained about his defense

counsel’s representation relatively early on, so his de facto
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motion was timely.

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We nonetheless conclude that the district

court’s inquiry into counsel’s representation was thorough and
complete; the district court conducted multiple hearings in the
course

of

considering

complaints.

And

as

and

the

rejecting

district

Carranza’s

court

expressly

numerous
found,

the

conflict between Carranza and defense counsel was not so great
that it resulted in a total lack of communication preventing an
adequate defense.
the

record:

Any suggestion to the contrary is belied by

Counsel

successfully

moved

to

have

Carranza’s

charges severed, selected juries, questioned witnesses, objected
to

testimony

against

and

evidence,

moved

Carranza

dismissed

to

and,

have

at

one

of

the

sentencing,

counts

argued

on

Carranza’s behalf for a sentence less than the one ultimately
imposed.

Viewed as a whole, these circumstances reveal that

Carranza and his counsel shared meaningful communication such
that Carranza was able to mount a defense.

See United States v.

Hanley, 974 F.2d 14, 17 (4th Cir. 1992) (holding that counsel’s
vigorous

defense

at

trial

indicated

a

lack

of

complete

communication breakdown).
Next,

Carranza

claims

attorney-client

privilege

complaints

his

about

the

district

by

attorney

inquiring
in

open

court
into

court.

violated

his

Carranza’s
According

to

Carranza, the district court “should have inquired into these
matters in private as suggested in Daniels v. Woodford[, 428
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F.3d 1181 (9th Cir. 2005).]”

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In Daniels, the defense attorney

asserted -- in opposing a prosecution motion to have defense
counsel removed -- that the attorney-client privilege prevented
him from revealing his communications with his client.

Daniels,

428

nor

F.3d

at

1189.

In

this

case,

neither

Carranza

attorney invoked the attorney-client privilege.

his

In fact, during

the first of the hearings into Carranza’s motions, the district
court informed Carranza that “if at any point we need to have -excuse

the

prosecutor,

if

there

is

anything

confidential

or

privileged, just let me know, because I’m glad to do that if it
needs

to

indicated

be

done.”

that

they

Neither
wished

Government’s presence.

Carranza
to

nor

discuss

his

matters

attorney
outside

ever
the

Accordingly, we discern no reversible

error stemming from the district court’s general inquiry into
defense counsel’s representation in open court.
Third, Carranza argues the district court erred by refusing
to

consider

his

pro

se

objections

to

his

presentence

report

(“PSR”), or his pro se motion to dismiss the indictment against
him based on the conditions of his confinement.

A criminal

defendant has no statutory or constitutional right to proceed
pro se while simultaneously being represented by counsel.

See

McKaskle v. Wiggins, 465 U.S. 168, 183 (1984) (recognizing that
Faretta v. California, 422 U.S. 806 (1975), does not require a
district court to permit “hybrid representation”).
4

Accordingly,

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the district court was not obligated to consider Carranza’s pro
se motion or objections.
Fourth, Carranza asserts the district court miscalculated
his

sentence.

Specifically,

he

argues

the

district

court

misapplied § 2B1.1(b)(2)(B) of the version of the United States
Sentencing Guidelines applicable at the time of his sentencing,
which

provided

for

a

four-level

increase

in

a

defendant’s

offense level if the underlying offense involved more than 50
victims.

Although the Government’s memorandum with respect to

restitution

identified

only

24

victims,

we

have

previously

explained in a related context that “losses relevant to finding
the appropriate offense level and therefore the proper sentence
of imprisonment is . . . not the same question as the amount of
losses properly covered by an order of restitution.”

United

States v. Newsome, 322 F.3d 328, 338 (4th Cir. 2003).

And a

review

of

Carranza’s

PSR

and

the

Government’s

restitution

memorandum indicate that 24 different insurance companies and at
least 47 individuals were victimized by his offenses.

As a

result, we see no error in the district court’s application of
§ 2B1.1(b)(2)(B).

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Finally, Carranza claims he received ineffective assistance
of counsel during his criminal trials 1 and at sentencing.

It is

well-established that ineffective assistance of counsel claims
may

be

addressed

ineffectiveness
States

v.

on

direct

conclusively

Powell,

680

appeal
appears

F.3d

350,

only
on

359

if

the
(4th

the

attorney’s

record.
Cir.

United

2012).

To

establish ineffective assistance of counsel, Carranza bears the
burden

of

showing

constitutionally

that:

deficient;

was prejudicial.

(1)
and

counsel’s
(2)

the

performance

deficient

was

performance

Strickland v. Washington, 466 U.S. 668, 687-

88, 691-92 (1984).

To satisfy the first hurdle, Carranza must

demonstrate

counsel’s

objective
evaluating

“that
standard
counsel’s

of

representation

reasonableness.”

performance,

we

“must

fell

Id.

at

indulge

below
688.
a

an
In

strong

presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance; that is, the defendant

1

Carranza was also convicted—in a separate case and by a
separate jury—of unlawful reentry of felon, in violation of 8
U.S.C. § 1326 (2012) (“the reentry case”).
United States v.
Carranza, No. 1:13-cr-00419-WO-1 (M.D.N.C., PACER No. 14).
A
consolidated PSR was prepared for the cases and Carranza was
sentenced in both cases at the same time, thereby resulting in a
single judgment. Counsel successfully moved to sever the appeal
and we recently affirmed the district court’s judgment to the
extent it pertains to the reentry case.
See United States v.
Carranza, No. 14-4632, 2016 WL 930199 (4th Cir. March 11, 2016)
(unpublished).
Thus, only the district court’s judgment as it
pertains to the chop shop case is at issue on this appeal.

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must overcome the presumption that, under the circumstances, the
challenged

action

might

be

considered

sound

trial

Id. at 689 (internal quotation marks omitted).
prejudice

under

there

a

is

Strickland,

reasonable

Carranza

probability

must
that,

strategy.”

To establish

demonstrate
but

for

“that

counsel’s

unprofessional errors, the result of the proceeding would have
been different.”
claims

and

conclusively

Id. at 694.

conclude
appear

that
on

the

We have considered Carranza’s

ineffective
record.

assistance
Accordingly,

does

not

Carranza’s

claims should be raised, if at all, in a 28 U.S.C. § 2255 (2012)
motion. 2

See United States v. Baldovinos, 434 F.3d 233, 239 &

n.4 (4th Cir. 2006).
In sum, having found no reversible error, we affirm the
district court’s judgment as it pertains to the chop shop case.
We

dispense

contentions

with
are

oral

argument

adequately

because

presented

in

the

facts

and

the

materials

legal
before

this court and argument would not aid the decisional process.
AFFIRMED

2

We of course express no opinion on the merits of any
ineffective assistance of counsel claims Carranza might choose
to raise in some future habeas proceeding.

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