United States v. Fernando Sanchez

Filing

PER CURIAM OPINION FILED - THE COURT: RAYMOND W. GRUENDER, DUANE BENTON and BOBBY E. SHEPHERD (UNPUBLISHED) [3926163] [11-2346, 11-2347]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 11-2346
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United States of America,

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Appellee,
v.
Fernando Sanchez,
Appellant.
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Appeals from the United States
District Court for the
Northern District of Iowa.

No. 11-2347
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United States of America,

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Appellee,
v.
Rafael Alegria-Ugalde,
Appellant.

[UNPUBLISHED]

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Submitted: February 13, 2012
Filed: June 27, 2012
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Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Fernando Sanchez, Rafael Alegria-Ugalde, and two other men were pulled over
in a Chevrolet Tahoe, in which police found a handgun and a substance containing
over 500 grams of pure methamphetamine. Sanchez and Alegria-Ugalde were both
charged with possession with intent to distribute 500 grams or more of a substance
containing methamphetamine, a violation of 21 U.S.C. § 841(a)(1), (b)(1)(A).
Alegria-Ugalde was also charged with possession of a firearm in furtherance of a drug
trafficking crime, a violation of 18 U.S.C. § 924(c), and unlawful reentry after
removal subsequent to a felony conviction, a violation of 8 U.S.C. § 1326(a), (b).
Sanchez and Alegria-Ugalde both pled guilty to the methamphetamine count, AlegriaUgalde pled guilty to the unlawful reentry count, and the district court dismissed the
firearm count on the Government’s motion. The district court1 sentenced Sanchez
and Alegria-Ugalde to 146 months’ and 295 months’ imprisonment, respectively.
They appeal on various grounds, and we affirm.
The district court granted Sanchez a three-level downward departure for
substantial assistance pursuant to U.S.S.G. § 5K1.1. Sanchez challenges that
departure, arguing that it should have been five levels because the district court failed
to consider adequately threats made against his family and the full extent of his
cooperation. However, “[t]he extent of a downward departure is not reviewable
absent an unconstitutional motive.” United States v. Robinson, 536 F.3d 874, 878
(8th Cir. 2008). Because Sanchez has not argued that there was such an
unconstitutional motive or that the district court erroneously believed that it lacked
the authority to depart further downwards, see United States v. Lawson, 563 F.3d 750,
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The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
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753 (8th Cir. 2009), the extent of the departure the district court granted is not
reviewable.
Sanchez further argues that the district court failed to state the reasons for its
departure under § 5K1.1. Because Sanchez failed to object on this ground at
sentencing, we review for plain error only. See United States v. Poitra, 648 F.3d 884,
888 (8th Cir. 2011). Under any standard of review, though, Sanchez’s claim fails.
“When determining the appropriate extent of a substantial-assistance downward
departure, the district court should consider” the five factors listed in § 5K1.1(a).
United States v. Stewart, 509 F.3d 450, 452 (8th Cir. 2007) (quoting United States v.
Dalton, 404 F.3d 1029, 1033 (8th Cir. 2005)). However, “[t]hese five factors are not
‘an exhaustive list,’ and the district court is not required ‘to examine each of the listed
factors in § 5K1.1 on the record and explain exactly just what weight it gives to each
in its departure decision.’” Dalton, 404 F.3d at 1033 (quoting United States v.
McCarthy, 97 F.3d 1562, 1577 (8th Cir. 1996)).
The record of Sanchez’s sentencing hearing shows that the district court did in
fact hear argument as to “the significance and usefulness of the defendant’s
assistance,” § 5K1.1(a)(1), “the nature and extent of the defendant’s assistance,”
§ 5K1.1(a)(3), “any injury suffered [by] . . . the defendant or his family resulting from
his assistance,” § 5K1.1(a)(4), and “the timeliness of the defendant’s assistance,”
§ 5K1.1(a)(5). The record makes it clear that the district court was aware of
Sanchez’s arguments, “and we therefore presume that the district court considered
and rejected them.” United States v. Johnson, 619 F.3d 910, 922 (8th Cir. 2010). The
district court was not required to engage in a mechanical recitation of the § 5K1.1
factors, see Dalton, 404 F.3d at 1033, and, as a result, we reject Sanchez’s contention
that the district court did not adequately explain the reasons for the departure it
granted.

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Finally, to the extent that Sanchez contends that his sentence was substantively
unreasonable, “[w]hen assessing substantive reasonableness, we consider the totality
of the circumstances at sentencing, and we review for abuse of discretion only.”
United States v. Diaz-Pellegaud, 666 F.3d 492, 501 (8th Cir. 2012). Beyond the
arguments addressed above, Sanchez fails to identify where the district court failed
“to consider a relevant factor that should have received significant weight, [gave]
significant weight to an improper or irrelevant factor, or consider[ed] only the
appropriate factors but commit[ted] a clear error of judgment in weighing those
factors,” see id. (quoting United States v. Delgado-Hernandez, 646 F.3d 562, 568
(8th Cir. 2011) (per curiam)), and we find no reason to conclude that Sanchez’s
sentence was substantively unreasonable.
Alegria-Ugalde primarily raises an ineffective assistance of counsel claim.
“We have repeatedly held that claims of ineffective assistance of counsel are
generally best litigated in collateral proceedings, such as an action under 28 U.S.C.
§ 2255.” United States v. Schwarte, 645 F.3d 1022, 1034 (8th Cir. 2011). “We will
consider ineffective-assistance claims on direct appeal only where the record has been
fully developed, where not to act would amount to a plain miscarriage of justice, or
where counsel’s error is readily apparent.” United States v. Ramirez-Hernandez, 449
F.3d 824, 827 (8th Cir. 2006). Here, the record is insufficiently developed to assess
the reasonableness of the performance of Alegria-Ugalde’s trial counsel, and we
detect no plain miscarriage of justice. Therefore, we decline to consider this claim
at this time.
Alegria-Ugalde’s pro se briefs challenge the district court’s calculation of his
sentencing guidelines range, specifically its assignment of two offense levels to
account for a leadership role, pursuant to U.S.S.G. § 3B1.1(c), and its assignment of
a criminal history point for a traffic violation. We typically do not consider pro se
arguments made by those represented by counsel. United States v. Williams, 599 F.3d
831, 834 n.3 (8th Cir.), cert. denied, 559 U.S. ---, 130 S. Ct. 2134 (2010). Even were
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we to consider them, though, these arguments are precluded by Alegria-Ugalde’s plea
agreement, which contained a waiver of Alegria-Ugalde’s “right to appeal the
conviction and the sentence imposed,” except in limited circumstances not applicable
here. “We will enforce a defendant’s appeal waiver against all issues that fall within
the scope of the waiver if the defendant entered the plea agreement and appeal waiver
‘knowingly and voluntarily’ and enforcement of the waiver would not cause a
‘miscarriage of justice.’” United States v. Boroughf, 649 F.3d 887, 890 (8th Cir.
2011) (quoting United States v. Scott, 627 F.3d 702, 704 (8th Cir. 2010)). We
conclude that his waiver was knowing and voluntary, and we are aware of no
circumstance that would merit application of the narrow exception for a miscarriage
of justice in this case. See United States v. Schulte, 436 F.3d 849, 850 (8th Cir.
2006). Accordingly, we decline to reach Alegria-Ugalde’s challenges to the
sentencing guidelines calculations.
We affirm.
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