Beltran-Garcia v. USA

Filing 7

MEMORANDUM DECISION AND ORDER denying and dismissing 1 MOTION to Vacate, Set Aside or Correct Sentence (2255). Signed by Judge Dale A. Kimball on 10/12/11 (alt)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

EDGAR FERNANDO BELTRANGARCIA,
Petitioner,

MEMORANDUM DECISION
AND ORDER

vs.
UNITED STATES OF AMERICA,

Case No. 2:11CV625DAK

Respondent.

This matter is before the court on Petitioner’s Motion to Vacate, Set Aside, or Correct
Sentence under 28 U.S.C. § 2255, filed July 5, 2011. On December 13, 2006, after a three-day
jury trial, Petitioner was found guilty of Counts 1, 2, 3, and 4 of the Indictment. On October 25,
2007, the court sentenced Petitioner to 180 months in the custody of the Bureau of Prisons and
60 months supervised release. Petitioner appealed. On September 19, 2009, the Tenth Circuit
Court of Appeals upheld Petitioner’s convictions but remanded the matter for re-sentencing
based on the finding that the district court denied the Petitioner allocution rights. On August 23,
2010, Petitioner was re-sentenced to a term of 132 months in the custody of the Bureau of
Prisons. The court re-imposed all of the other conditions of the former sentence.
The first four issues raised in Petitioner’s § 2255 assert ineffective assistance of counsel
by trial and appellate counsel. Petitioner argues that at the close of evidence his trial counsel
should have brought a Rule 29 motion as to each count in the Indictment because the

government’s evidence was insufficient to sustain a conviction. Petitioner also argues that his
appellate counsel was deficient in failing to raise this issue on direct appeal. Petitioner’s claim
that his counsel was ineffective requires him to show: “(1) his counsel’s performance was
constitutionally deficient, and (2) his counsel’s deficient performance was prejudicial.” United
States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995); United States v. Glover, 97 F.3d 1345, 1349
(10th Cir. 1996).
The trial transcripts in this case show sufficient evidence in the government’s case-inchief to support Petitioner’s conviction. Petitioner has failed to point to specific facts or a lack of
specific elements of the government’s case that would have led to a directed verdict at the close
of the evidence. During the trial, counsel for the co-defendant brought a Rule 29 motion that was
denied. Arguably, the government’s evidence against the co-defendant was weaker than the
evidence against Petitioner. Petitioner has not demonstrated any probability that the court would
have granted a Rule 29 motion. Based on the evidence presented at trial, there was no basis for
Petitioner’s to bring a Rule 29 motion. In addition, based on the transcripts of the trial, there was
no basis for Petitioner’s appellate counsel to raise the issue on appeal. Accordingly, the court
concludes that trial counsel’s decision not to bring a Rule 29 motion was not ineffective
assistance of counsel and appellate counsel’s failure to raise the issue on appeal was not
ineffective assistance of counsel. Moreover, Petitioner has not demonstrated prejudice because
there is no evidence to demonstrate that raising the motion or issue on appeal would have
produced a different result. Therefore, Petitioner’s motion is denied with respect to his
ineffective assistance of counsel claims.
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Next, Petitioner argues that the court erred in his second sentencing by failing to notify
Petitioner of his right to appeal and his counsel was deficient in failing to alert the court that it
failed to advise him of his right to appeal. At Petitioner’s original sentencing, the court advised
Petitioner of his right to appeal. And, Petitioner, in fact, exercised his right to appeal. After the
case was remanded for re-sentencing, the court re-sentenced Petitioner stating, “Same conditions,
same supervised release, the same everything else, except the sentence is 132 months.” The
court asked counsel if they thought he had to do anything else and counsel stated no.
A court’s failure to advise a defendant of his right to appeal does not entitle him to relief
if he knew of his right and thus suffered no prejudice from the omission. Peguero v. United
States, 526 U.S. 23, 27 (1999). Based on Petitioner’s prior appeal in the case and the court’s
statement that everything was the same, Petitioner knew of his right to appeal. Petitioner was not
prejudiced because the court did not again inform him of that right at the second sentencing
hearing. Additionally, Petitioner’s counsel was not deficient in failing to raise the issue with the
court. Accordingly, the court finds no basis for vacating, setting aside, or correcting Defendant’s
sentence on these grounds.
CONCLUSION
Based on the above reasoning, Petitioner’s motion under 28 U.S.C. § 2255 is DENIED
and this case is DISMISSED.
DATED this 12th day of October, 2011.

DALE A. KIMBALL
United States District Judge
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