Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Appeal from the United States District Court for the Eastern District of California, Edward J. Garcia, District Judge, Presiding. Submitted Sept. 18, 1998
The panel unanimously finds this case suitable for decision without oral argument pursuant to Fed.R.App.P. 34(a)(2).
Before CANBY and KLEINFELD, Circuit Judges, and KEEP, District Judge.
The Honorable Judith N. Keep, United States District Judge for the Southern District of California, sitting by designation.
ORDER
The memorandum disposition filed February 11, 2000, is ordered WITHDRAWN.
The attached memorandum disposition is ordered FILED.
The panel, as constituted above, has unanimously voted to deny the petition for panel rehearing. Judge Kleinfeld has voted to deny the petition for rehearing en banc, and Judges Canby and Keep have so recommended.
The petition for en banc rehearing has been circulated to the full court, and no judge of the court has requested a vote on the petition for rehearing en banc. Fed. R.App. P. 35(b).
The petition for panel rehearing and the petition for rehearing en banc are DENIED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir. R. 36-3.
Federal prisoner Carlos Ramirez-Vasquez appeals his conviction of conspiracy to manufacture a controlled substance (methamphetamine). His attorney filed an Anders brief stating that he did not find any appealable issues. Ramirez, pro se, now argues (1) that there was insufficient evidence to convict him of conspiracy to manufacture methamphetamine; (2) that the district court erred when it denied him downward adjustments for acceptance of responsibility, for a mitigating role, or under the safety valve statute; (3) that the district court erred when it denied his motion for a new trial for ineffective assistance of counsel; and (4) that he received ineffective assistance of sentencing counsel because counsel did not argue for the above downward adjustments. We find none of these issues to be "arguable on their merits (and therefore not frivolous)." Anders v. California, 386 U.S. 738, 744 (1967), We therefore grant the motion of Ramirez's counsel to withdraw, and affirm the judgment of the district court without appointment of new counsel. See id.; Smith v. Robbins, 120 S.Ct. 746, 761 (2000).
Ramirez-Vasquez was tried and convicted together with Arturo Estrada-Macias, whose appeal No. 97-10115 was submitted together with that of Ramirez-Vasquez. The appeal of Estrada-Macias will be dealt with in a separate disposition.
I
The parties are familiar with the facts. We will repeat them here only as necessary.
II
Viewing the evidence in the light most favorable to the verdict, this court must affirm the district court if any reasonable jury could have found the essential elements of the crime beyond a reasonable doubt. See United States v. Sherwood, 98 F.3d 402, 408 (9th Cir.1996).
Ramirez does not argue that a conspiracy did not exist--only that he was not a participant. Thus, the government need only prove a slight connection between Ramirez and the conspiracy. Here, the government presented sufficient evidence to support this verdict.
Ramirez received a shipment of ten boxes of pseudoephedrine, claiming that the shipment was intended for someone else. The government presented the jury with the details of the delivery, including the fact that the drugs were delivered in the name of his uncle and that Ramirez paid for the shipment with $11,000 cash. The government presented evidence showing Ramirez' link to the other conspirators in California and Texas. The government also presented the jury with Ramirez' inconsistent statements regarding his receipt of other shipments of pseudoephedrine. Ramirez' handling and loading of the pills, his meeting with co-conspirators shortly after delivery, and his sudden departure to Mexico shortly after his DEA interviews, also supported the verdict. There is accordingly no substance to Ramirez's claim.
III
Ramirez argues that he is entitled to a two-level decrease from the base level for his "acceptance of responsibility." The Sentencing Guidelines provide for such a reduction if the defendant "clearly demonstrates acceptance of responsibility for his offense." USSG § 3E1.1(a). According to the commentary, the "sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review." USSG § 3E1.1, comment. (n.5). A determination of whether the defendant has accepted responsibility will be "based primarily upon pre-trial statements and conduct." USSG § 3E1.1, comment. (n.2).
Ramirez, however, still denies all guilt and maintains that he only received the pseudoephedrine for a friend. At his sentencing, he told the judge that it was "not my fault that other people arrived at my house on that day, and that's all I have to say." His claim to be entitled to the downward adjustment is frivolous.
The district court did not err in denying Ramirez a mitigating role adjustment as a "minimal" or a "minor participant" in the conspiracy. See USSG § 3B1.2(a) and (b).
Because Ramirez failed to object to the denial of this downward adjustment, we review the district court's finding that Ramirez is not entitled to a minor role adjustment for plain error. See United States v. Koenig, 952 F.2d 267, 272 (9th Cir.1991). This downward adjustment is to be used "infrequently and only in exceptional circumstances." United States v. Davis, 36 F.3d 1424, 1436 (9th Cir.1994).
As related above, the government presented sufficient evidence of Ramirez' substantial participation to support the court's decision to deny Ramirez a role adjustment pursuant to § 3B1.2. The district court's action was not error, plain or otherwise.
V
The Sentencing Guidelines provide for a downward adjustment pursuant to § 5C1.2 if the defendant meets all of the following:
(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines;
(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
(3) the offense did not result in death or serious bodily injury to any person;
(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848; and
(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.
USSG § 5C1.2.
The probation officer in this case recommended an upward adjustment based on Ramirez' obstruction of justice and untruthful testimony at trial. The district court chose, however, not to apply the enhancement. Accordingly, because Ramirez made false statements about his involvement in the criminal offense, the court's decision not to provide Ramirez with a downward adjustment pursuant to § 5C1.2 was not error, much less plain error. This claim, too, is without substance.
VI
We review a motion for a new trial for an abuse of discretion. See United States v. George, 960 F.2d 97, 101 (9th Cir.1992). This court may review ineffective assistance of counsel claims on direct appeal if the record is sufficiently complete. See United States v. Molina, 934 F.2d 1440, 1446 (9th Cir.1991). Here, the district court reviewed Ramirez' claims of ineffective assistance of counsel in a motion for a new trial.
Under Strickland v. Washington, Ramirez must first show that his counsel's actions fell below an objective standard of reasonableness. 466 U.S. 668, 687-688 (1984). Next, he must show that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Denying Ramirez' motion, the district court began by repeating the Strickland Court's admonition that "[t]he object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed." Id. at 697.
Next, the court correctly rejected each of Ramirez' arguments for prejudice. The record supports the court's determination that the evidence that Ramirez' trial attorney failed to obtain would have been either cumulative, or not helpful to his defense. Thus, the district court clearly did not abuse its discretion when it denied the motion for new trial.
VII
When the record on appeal is not adequate to consider a claim of ineffective assistance of counsel, the proper procedure is to resolve the claim in a motion under 28 U.S.C. § 2255. See Molina, 934 F.2d at 1446. Ramirez raises this issue for the first time on appeal.
Both parties, however, agree that the record is sufficient to dispose of this claim. Ramirez argues that his counsel was "completely unprepared for the sentencing hearing." To support this contention, he presents only two arguments that counsel should have advanced at sentencing: (1) that Ramirez qualified for the Safety Valve provision under § 5C1.2 of the Guidelines; and (2) that Ramirez qualified for a minimal role adjustment under § 3B1.2(a). For reasons already set forth, these arguments would have failed if presented by sentencing counsel. Ramirez did not suffer any prejudice. This claim, like those discussed above, is utterly without merit.
VIII
We have reviewed the remaining contentions set forth in Ramirez' briefs and find them to be frivolous. The judgment of the district court is
AFFIRMED.