United States v. Felicianosoto

934 F.3d 783

UNITED STATES of America, Plaintiff - Appellee

v.Alvin FELICIANOSOTO, Defendant - Appellant

No. 18-2493

United States Court of Appeals, Eighth Circuit.

Submitted: June 13, 2019

Filed: August 15, 2019

Jennifer D. Mammenga, Special Assistant U.S. Attorney, Ronald A. Parsons, Jr., U.S. Attorney, U.S. ATTORNEY'S OFFICE, District of South Dakota, Sioux Falls, SD, for Plaintiff - Appellee.

Justin L. Bell, MAY & ADAM, Pierre, SD, for Defendant - Appellant.

Alvin Felicianosoto, Pro Se.

Before COLLOTON, KELLY, and ERICKSON, Circuit Judges.

KELLY, Circuit Judge.

A jury found Alvin Felicianosoto guilty of conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1). The district court¹ sentenced him to concurrent 210-month terms of incarceration. On appeal, Felicianosoto argues that his attorney violated his Sixth Amendment rights by conceding guilt as to the possession with intent to distribute count at trial and that the district court committed several sentencing errors. We affirm.

I

The evidence presented at trial revealed the following. In July 2016, Alex Ventura was arrested by Sioux Falls police officers and became a cooperating witness. Ventura agreed to arrange a controlled methamphetamine buy from Felicianosoto on July 20, 2016, and police arrested Felicianosoto en route to the sale. On his person they found a mixture containing 107.4 grams of pure methamphetamine (approximately four ounces). The next day, police executed a search warrant on Felicianosoto’s residence and discovered five bags of methamphetamine, packaging, and a scale in the garage.

Victoria Parrow testified that she met Felicianosoto through Ventura in 2015 and had regularly purchased methamphetamine from him. After purchasing smaller amounts for several weeks, she began purchasing half-pound quantities. She estimated that she purchased a half pound every other week for six or seven months, and then sold it to others. She primarily communicated with Felicianosoto via text message. Several of those messages were read aloud at trial, and she explained that they were setting up sales of methamphetamine.

Two other witnesses—Blanca Luna-Soto and Edras Chua-Lemus—testified that they had supplied methamphetamine to Felicianosoto. Luna-Soto testified that, in late 2015 or early 2016, her husband, Chua-Lemus, sold Felicianosoto methamphetamine in exchange for a car title. Chua-Lemus similarly testified that he met Felicianosoto in 2015 and sold him methamphetamine on two occasions (first a half pound and then later one pound).

The police interviewed Felicianosoto on December 20, 2016, and Officer Hector Soto testified about the contents of that interview. Felicianosoto reportedly told officers that the methamphetamine found on his person when he was arrested on July 20 had belonged to Ventura and that Felicianosoto was merely holding it for him. He also claimed that the methamphetamine discovered at his house on July 21 belonged to Ventura. He reportedly told officers that he sometimes distributed methamphetamine to others on Ventura’s instructions.

Felicianosoto testified at trial. He stated that he primarily stored Ventura’s methamphetamine for him and provided him amounts when he needed it. He admitted to holding Ventura’s methamphetamine on July 20, when he was arrested with approximately four ounces of methamphetamine on his person. He testified that he never sold methamphetamine to Parrow, but sometimes accompanied Ventura when Ventura sold to Parrow. Ventura would sometimes tell Parrow that the methamphetamine was Felicianosoto’s to ensure that she would pay. Felicianosoto denied ever obtaining methamphetamine from Chua-Lemus or Luna-Soto and denied knowing about the methamphetamine discovered in his garage.

Throughout the trial, Felicianosoto’s counsel conceded his client’s guilt as to the possession with intent to distribute charge but asked for a verdict of not guilty on the conspiracy charge. In his opening statement, counsel acknowledged that "Alvin did have methamphetamine in his possession, as it is alleged in Count 2, in July of 2016." At closing, he stated, "We know that Alvin got caught with four ounces. He got called and he showed up, and he’s never denied that." Later, his counsel said: "Yes, he distributed it, or attempted to, and for that I’m not asking you to acquit him. The government is right. In that Verdict Form there was more than 50 grams in his possession with intent to distribute. That is guilty." He went on to attack the evidence supporting the conspiracy charge, as well as the credibility of the government’s witnesses.

The jury convicted Felicianosoto on both counts. On the conspiracy count, the jury found that Felicianosoto was responsible for 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine. On the possession with intent to distribute count, the jury found that he was responsible for 50 grams or more of actual methamphetamine.

Prior to sentencing, Felicianosoto objected to the recommendation that he receive a two-level enhancement for obstruction of justice under United States Sentencing Guidelines § 3C1.1 (2016) based on his purportedly false material testimony at trial. The district court overruled the objection, finding that Felicianosoto had testified falsely when he denied knowing Chua-Lemus and Luna-Soto, denied placing the drugs in his garage, and denied selling drugs to Parrow. After sustaining Felicianosoto’s drug-quantity objection, the district court calculated a total offense level of 34 and a criminal history category of II. This established an advisory Guidelines range of 168 to 210 months’ imprisonment, with a mandatory 10-year minimum sentence on each count. After a lengthy allocution, during which Felicianosoto among other things accused his defense attorney of conspiring with the government, the district court imposed concurrent sentences of 210 months’ imprisonment on each count.

II

On appeal, Felicianosoto raises four claims. He argues that his trial counsel’s concession of guilt amounted to a structural error meriting reversal under McCoy v. Louisiana, ––– U.S. ––––, 138 S. Ct. 1500, 200 L.Ed.2d 821 (2018). He also argues that the district court erred in applying the obstruction-of-justice enhancement and in failing to consider the sentencing factors contained in 18 U.S.C. § 3553 and that his sentence is substantively unreasonable. We address his McCoy claim before turning to the sentencing issues.

A

The Sixth Amendment entitles the accused "to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. In McCoy, the Supreme Court held that the Sixth Amendment was violated when defense counsel conceded the defendant’s guilt during the guilt phase of a capital trial even though the defendant "vociferously insisted that he did not engage in the charged acts and adamantly objected to any admission of guilt." 138 S. Ct. at 1505. In so holding, the Court concluded that "[a]utonomy to decide that the objective of the defense is to assert innocence" belongs in the category of decisions reserved to the defendant alone. Id. at 1508 (identifying other such decisions as whether to plead guilty, whether to waive the right to a jury trial, whether to waive the right to counsel, whether to testify, and whether to appeal). That autonomy is violated when a lawyer acts contrary to his client’s "express[ ] assert[ion] that the objective of ‘his defence’ is to maintain innocence of the charged criminal acts." Id. at 1509 (quoting U.S. Const. amend. VI ). The Court concluded that this error was structural and therefore not subject to ordinary harmless-error analysis. See id. at 1510–11.

The Supreme Court’s treatment of the McCoy error contrasts with its treatment of a similar issue in Florida v. Nixon, 543 U.S. 175, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004). In Nixon, the Court held that a lawyer’s concession of guilt without the defendant’s "express consent" does not automatically constitute ineffective assistance of counsel. See 543 U.S. at 178, 125 S.Ct. 551. "[W]hen a defendant, informed by counsel, neither consents nor objects to the course counsel describes as the most promising means to avert a sentence of death, counsel is not automatically barred from pursuing that course." Id. The defendant in Nixon was repeatedly informed of his attorney’s proposed strategy to concede guilt but refused to respond to inquiries from his lawyer or the court. See id. at 189, 125 S.Ct. 551. The difference in McCoy was that the defendant opposed his attorney’s assertion of guilt "at every opportunity, before and during trial, both in conference with his lawyer and in open court." McCoy, 138 S. Ct. at 1509.

Felicianosoto asserts that McCoy entitles him to a new trial because he expressed his opposition to his attorney’s assertion of guilt by pleading not guilty to both counts and taking his case to trial. But Felicianosoto admitted on the stand to holding nearly four ounces of methamphetamine for Ventura, who would later distribute it to others. This was consistent with his attorney’s statements to the jury that he was guilty of the possession with intent to distribute count. The record does not reflect that Felicianosoto made any "express statements of [his] will to maintain innocence" in response to his attorney’s concessions, either to his counsel or the court. Id. As a result, Felicianosoto has not demonstrated at this juncture that his counsel’s concession of guilt violated his autonomy to decide the objective of his defense. We recognize there may be facts not in the present record that might demonstrate such a violation. Felicianosoto remains free to renew his Sixth Amendment claim in a motion under 28 U.S.C. § 2255. See United States v. Hashimi, 768 F. App'x 159, 163 (4th Cir. 2019) (per curiam).

At oral argument, Felicianosoto’s counsel urged ...