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Filed: Patrick Fisher
Filed: Patrick Fisher
APR 15 1998
PATRICK FISHER
Clerk
v.
NESTOR LONDONO,
Defendant-Appellant.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Defendant Nestor Londono appeals from the district courts order denying
his motion to vacate sentence filed pursuant to 28 U.S.C. 2255. 1 The district
court denied Mr. Londonos motion, and we affirm in part and reverse in part.
Because the United States is a party in this case, Mr. Londono had sixty
days from the date of the district courts judgment, or until January 13, 1997, to
file his notice of appeal. See Fed. R. App. P. 4(a)(1). Because he did not file his
notice of appeal until February 11, 1997, we initially must determine whether this
court has jurisdiction to entertain Mr. Londonos appeal.
Filing requirements for appeals are mandatory and jurisdictional. See
Senjuro v. Murray, 943 F.2d 36, 37 (10th Cir. 1991). Federal Rule of Appellate
Procedure 4(a)(5) provides, however, that, upon a showing of excusable neglect
or good cause, the district court may grant an extension of time for filing a notice
of appeal upon motion of the appellant filed no later than thirty days after
Mr. Londono filed his 2255 motion on April 5, 1996. At the time
Mr. Londono filed his notice of appeal, decisions of this court applied the
28 U.S.C. 2253(c) certificate of appealability requirements of the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA) to cases filed prior to
AEDPAs April 26, 1996 effective date. In light of the Supreme Courts recent
opinion in Lindh v. Murphy, 117 S. Ct. 2059, 2068 (1997), however, we have held
that 2255 movants who filed their actions prior to AEDPAs effective date need
not obtain a certificate of appealability to proceed on appeal. See United States v.
Kunzman, 125 F.3d 1363, 1364 n.2 (10th Cir. 1997), cert. denied, ___ S. Ct. ___,
1998 WL 86544 (1998). Therefore, we need not address Mr. Londonos motion
for a certificate of appealability filed in this court, and the same is hereby
dismissed.
1
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expiration of the applicable Rule 4(a)(1) time. If the motion is filed within the
thirty-day time frame, the motion may be considered by the district court ex parte.
See Fed. R. App. P. 4(a)(5). If the motion is filed after the thirty-day grace
period, notice must be given to all parties in accordance with local rules. See id.
The district court denied defendants 2255 motion on November 14, 1996.
On February 10, 1997, defendant mailed his notice of appeal, an Ex Parte
Motion Seeking Permission of the Court to File Notice of Appeal Beyond Time
Restrictions, and a motion to proceed on appeal in forma pauperis to the district
court. The district court filed these documents on February 11, 1997, and granted
defendants motion to file out of time on March 12, 1997. This court docketed
defendants appeal on March 19, 1997.
Because Mr. Londono filed his motion for extension of time outside the
thirty-day grace period, and because it was unclear as to whether the government
had been given the required notice, this court, on its own motion, challenged its
jurisdiction to entertain Mr. Londonos appeal. In its response to our
jurisdictional challenge, the government advised, however, that they received
notice of Mr. Londonos motion for extension of time to file his notice of appeal
on February 13, 1997. Therefore, because the government received the proper
notice, the district court retained jurisdiction to rule on Mr. Londonos motion,
see Oda v. Transcon Lines Corp., 650 F.2d 231, 232 (10th Cir. 1981), and its
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I. Background
Mr. Londono was tried and convicted on one count of conspiracy to possess
with intent to distribute cocaine in violation of 21 U.S.C. 846 and one count of
interstate travel in aid of racketeering in violation of 18 U.S.C. 1952(a)(2) and
(3), involving a drug trafficking conspiracy extending from October 1988 until
May 1990. The evidence at trial established that Mr. Londono distributed cocaine
from his bakery business and his home in Miami, Florida. His grand jury
indictment identified Jose Alberto Munoz, Reynel Lugo-Avila, Bob Wayne Ford,
Connie Jean Ford, and others, both known and unknown, as co-conspirators.
Mr. Londono was sentenced to concurrent prison terms of 292 months on the
conspiracy conviction and 60 months on the interstate travel in aid of racketeering
conviction.
Mr. Londono appealed, claiming (1) the trial court abused its discretion
when denying motions for mistrial based upon the jurys inability to reach a
verdict; (2) he was denied his constitutional right of confrontation when hearsay
evidence was admitted at sentencing; (3) there was insufficient evidence to
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II. Discussion
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[A] defendant may not raise claims that were not presented on direct
appeal unless he can show cause and prejudice resulting from the error. United
States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995). Appellate counsels
ineffectiveness in not raising these claims can constitute cause excusing his
procedural default. See id. To establish ineffective assistance of counsel,
Mr. Londono must show that his appellate counsels performance fell below an
objective standard of reasonableness, and that counsels deficient performance
was prejudicial. See Strickland v. Washington, 466 U.S. 668, 687, 690 (1984).
Mr. Londono must prove that there is a reasonable probability that, but for
counsels unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Id. at 694. We review Mr. Londonos
ineffectiveness claim de novo. See Brewer v. Reynolds, 51 F.3d 1519, 1523 (10th
Cir. 1995).
When a defendant alleges his appellate counsel rendered ineffective
assistance by failing to raise an issue on appeal, we examine the merits of the
omitted issue. Cook, 45 F.3d at 392. If the omitted issue proves to be meritless,
counsels failure to raise it does not constitute ineffective assistance. See id. at
393. We therefore turn to the merits of Mr. Londonos claims of sentencing error.
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A. Relevant Conduct
First, Mr. Londono claims that the sentencing court erred in including fifty
kilograms of uncharged cocaine as relevant conduct in calculating his base
offense level, see U.S.S.G. 1B1.3. The government has the burden of proving
the quantity of drugs for sentencing by a preponderance of the evidence. See
United States v. Richards, 27 F.3d 465, 468 (10th Cir. 1994). The information
upon which the district court relies must be sufficiently reliable. See id.
When determining a sentencing range, the sentencing guidelines require
that a sentencing court include as relevant conduct all acts that were part of the
same course of conduct or common scheme or plan as the offense of conviction,
regardless of whether the defendant was convicted of the underlying offenses
pertaining to the additional amounts. United States v. Roederer, 11 F.3d 973,
978-79 (10th Cir. 1993) (further quotation omitted). Whether acts are relevant
conduct for a participant in a conspiracy is determined by reference to all acts
and omissions committed, aided, abetted, counseled, commanded, induced,
procured, or willfully caused by the defendant; and . . . all reasonably foreseeable
acts and omissions of others in furtherance of the jointly undertaken criminal
activity[.] U.S.S.G. 1B1.3(a)(1)(A), 1B1.3(a)(1)(B).
A finding of same course of conduct does not require a connection
between the acts in the form of an overall criminal scheme. Rather, the guideline
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(sic) Mr. Londono on a front basis, that he would redistribute that cocaine to the
Fords and then pay Mr. Londono after that. Sentencing Tr., Supp. Vol. I at 17.
He also described a pager communication system between himself and Mr.
Londono used for setting up cocaine transactions. See Appellees App.
at 22.
Mr. Munoz testified at Mr. Londonos trial that when he questioned
Mr. Londono regarding a delay in an expected cocaine delivery, Mr. Londono
showed him a newspaper article reporting the arrest of a woman who
Mr. Londono indicated was his supplier. See Trial. Tr., Supp. Vol. II at 53-54;
see also Sentencing Tr., Supp. Vol. I at 11. Agency Hersley testified that when
this woman, Norse Calle, was arrested, approximately 606 kilograms of cocaine
were seized. See Sentencing Tr., Supp. Vol. I at 10. Mr. Munoz stated that Mr.
Londono told him he was expecting to receive fifty kilograms of that amount.
See id. at 13.
The government need only provide evidence of relevant conduct that
satisfies a preponderance of the evidence standard. See Richards, 27 F.3d at 468.
The record in this case shows that the government satisfied this burden.
Mr. Londono admitted to Mr. Munoz that he was expecting fifty kilograms from
his female supplier who had been arrested. The evidence establishes that this
fifty kilograms of cocaine was part of an identifiable behavior pattern, of
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challenge the adequacy of the findings on appeal did not prejudice Mr. Londono
in light of the district courts findings in denying Mr. Londonos 2255 motion.
We conclude that a remand for more specific findings would not have afforded
appellate counsel another opportunity to persuade the sentencing court, but rather
only would have afforded the sentencing court an opportunity to make specific
evidentiary findings to explain the enhancement -- a requirement that the district
court has now adequately provided.
B. Leadership Role
Next, Mr. Londono asserts that his appellate counsel rendered ineffective
assistance by failing to challenge the sentencing courts imposition of a four-level
enhancement of his sentence for his role as a leader or organizer. In determining
whether appellate counsel was deficient for failing to raise an issue on appeal, we
have held that counsels strategic decisions to forego weaker arguments in order
to concentrate on those more likely to succeed is the hallmark of effective
advocacy. Cook, 45 F.3d at 394-95 (quotation omitted). Ineffective assistance
of appellate counsel may exist, however, if counsel omitted a dead-bang
winner. Id. at 395 (quoting Page v. United States, 884 F.2d 300, 302 (7th Cir.
1989)). We have defined a dead-bang winner as an issue which was obvious
from the trial record . . . and one which would have resulted in a reversal on
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and is not to be levied against those who are only important or essential figures
in the criminal enterprise. Torres, 53 F.3d at 1142. (further quotation omitted).
In Torres, the defendants presentence report contained a conclusory
statement that [t]he investigation revealed that the defendant was a leader in a
criminal organization that involved five or more participants and was otherwise
extensive. Id. at 1143 (further quotation omitted). In finding the enhancement
appropriate, the sentencing court did not consider any of the factors suggested by
the commentary to 3B1.1, but only stated that there were five or more
participants involved and that the defendant was the engine that made this train
run. Id.
In reviewing the record in Torres, this court concluded that there was no
evidence that the other coconspirators worked for the defendant, that they
received any type of remuneration from the defendant, that the defendant
restricted the people to whom the other coconspirators could sell their drugs, that
he controlled the manner or the place of delivery of the drugs, that the defendant
set the prices at which the drugs could be redistributed or sold, that the defendant
recruited people, or that he claimed a right to a larger share of the monetary gain.
See id. Consequently, we held that the government had failed to carry its burden
of proof as to the propriety of the enhancement. See id.
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Although the sentencing court may have been correct in its determination
that [w]ithout [Mr. Londono] this operation either stops or slows down,
Sentencing Tr., Supp. Vol. I at 50, this is only indicative of Mr. Londonos
importance to the drug operation, and not indicative of whether he was a leader or
organizer who exercised control over the other persons involved, see Torres, 53
F.3d at 1143. Based on the record before us, we therefore conclude that Mr.
Londono did not exert any control over the drug distribution conspiracy other than
that inherent in a buyer/seller relationship. See United States v. Owens, 70 F.3d
1118, 1129 (10th Cir. 1995) (holding that the mere fact that defendant supplied
cocaine to others, without more, does not support a leadership role
enhancement). 3 Under these circumstances, we conclude that appellate counsels
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III. Conclusion
In sum, we determine that the sentencing court correctly calculated the
amount of drugs attributable to Mr. Londono for purposes of determining his base
offense level. Counsels decision to omit this issue as weak was appropriate trial
strategy, and within an objective standard of reasonable advocacy. See Cook, 45
F.3d at 394-95 (holding that counsels strategic decision to omit weaker issues
does not violate Sixth Amendments right to effective assistance). Mr. Londono
therefore, has failed to establish cause and prejudice resulting from counsels
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failure to raise the issue on direct appeal, and the district court correctly deemed
the issue procedurally barred.
Although Mr. Londono did not raise the leadership enhancement issue on
direct appeal, we hold that the probable success of the issue is obvious from the
record, and, but for counsels failure to raise the issue, there is a reasonable
probability that the outcome of the appellate proceeding would have been
different. See Strickland, 466 U.S. at 694. Therefore, Mr. Londono has
established cause and prejudice excusing the omission.
We thus AFFIRM the judgment of the United States District Court for the
Eastern District of Oklahoma, denying Mr. Londono 2255 relief on the relevant
conduct issue. The district courts denial of relief under 2255 on the issue of
appellate counsels erroneous failure to raise the issue of improper leadership
enhancement is VACATED, and the cause is REMANDED for further
proceedings consistent with this order and judgment.
Bobby R. Baldock
Circuit Judge
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