IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 94-50634
Summary Calendar
_____________________
United States of America,
Plaintiff/Appellee,
versus
Armando Ramirez-Rodriguez,
Defendant/Appellant.
_________________________________________________________________
Appeal from the United States District Court
For the Western District of Texas
(DR-94-CA 06 (DR-91-CR-06))
_________________________________________________________________
(May 22, 1995)
Before JOHNSON, BARKSDALE, and PARKER, Circuit Judges.*
JOHNSON, Circuit Judge:
Federal prisoner, convicted of conspiracy to possess with intent
to distribute marijuana, filed a motion for relief pursuant to 28
U.S.C. § 2255. In the motion, the prisoner contended that his
conviction violated double jeopardy because he was acquitted of
possession with the intent to distribute marijuana and that his trial
counsel was constitutionally ineffective for various reasons.
Adopting the magistrate judge's recommendation, the district court
denied the prisoner's motion. The prisoner now appeals and, finding
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
no error, we AFFIRM.
I. FACTS AND PROCEDURAL HISTORY
In late 1990, Conrad Lopez, an informant on the DEA's payroll
and acting at the behest of Agent Robert Howell, contacted Domingo
Martinez-DeLeon (Martinez) in an attempt to determine if Martinez was
engaged in drug trafficking. Over the course of several meetings
with Martinez, Lopez was introduced to Alcadio Cervantez-Ramon
(Cervantez) and was shown a Kenworth tractor parked at Cervantez'
residence. This tractor was allegedly used to transport quantities
of marijuana. Moreover, Lopez learned that Martinez was to deliver
approximately 2000 pounds of marijuana to Dallas.
Lopez communicated this information to Agent Howell and
surveillance of the Kenworth truck was instituted when it was located
at a Del Rio truck stop on January 12, 1991. For several days, the
tractor, now hooked to a refrigerated trailer, remained at the truck
stop. While at the truck stop, DEA agents often observed Cervantez
checking on the rig and he moved it once to a different location on
the truck stop parking apron. Also, DEA agents several times
observed a gray pickup truck, owned by Appellant Armando Ramirez-
Rodriguez (Ramirez), driving up to the tractor-trailer and then to a
nearby motel where Romero Gonzalez-Quintanilla (Gonzalez) had taken
two rooms. Martinez, Gonzalez and Ramirez were seen together at the
motel on several occasions and these three also met with Cervantez at
the truck stop restaurant.
Late on the night of January 15th, Cervantez retrieved the
tractor-trailer rig from the truck stop and proceeded to the
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residence of Antonio Delgado. The tractor-trailer remained there for
about two hours. The surveillance agents were unable, however, to
see what, if anything, occurred while the truck was parked at
Delgado's residence.
Shortly after midnight on the morning of the 16th, the tractor-
trailer rig left Delgado's residence and returned to the truck stop.
Also shortly after midnight, Ramirez, Martinez and Gonzalez left the
motel in the gray pickup and proceeded to the truck stop where they
met up with Cervantez in the truck stop restaurant. Cervantez left
in the tractor-trailer after about 10-20 minutes, followed 15 minutes
later by Ramirez, Martinez and Gonzalez in the gray pickup.
DEA agents communicated their suspicions about these two
vehicles to the border patrol checkpoint about twenty miles northwest
of Del Rio. Thus, border patrol agents stopped the tractor-trailer
when it arrived and found about 1,720 pounds of marijuana. The gray
pickup, driven by Ramirez, arrived shortly after the tractor-trailer.
Ramirez, Gonzalez and Martinez were then arrested and a loaded, 9mm
pistol was found protruding from underneath the right hand side of
the bench seat under where Martinez had been sitting.
A Del Rio grand jury returned indictments charging Ramirez,
Martinez, Cervantez, Gonzalez and Delgado with conspiracy to possess
with intent to distribute and possession with intent to distribute
more than 100 kilograms of marijuana. Also, all defendants except
Delgado were charged in a third count of carrying a firearm during
and in relation to the drug trafficking offenses charged in the first
two counts.
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A consolidated trial was held before a jury and the jury
returned guilty verdicts against all co-conspirators as follows: 1)
all five men were found guilty on the conspiracy count; 2) Martinez,
Cervantez and Delgado were found guilty on the possession count; and
3) Martinez alone was found guilty on the firearm offense. Relevant
to the instant appeal, the district court sentenced Ramirez to a term
of imprisonment of 121 months, a five-year term of supervised
release, and a $50 special assessment.
On November 2, 1992, this Court, in an unpublished opinion,
affirmed the convictions and sentences of Martinez, Ramirez,
Cervantez and Gonzalez.1 Delgado's conviction was overturned for
insufficiency of the evidence of his guilt.
Thereafter, Ramirez filed the instant motion for habeas relief
pursuant to 28 U.S.C. § 2255. In that motion, Ramirez argued that
his conviction for conspiracy to possess with intent to distribute
marijuana violated double jeopardy because he was acquitted of
possession with intent to deliver marijuana. Also, Ramirez contended
that his trial counsel was ineffective for failing to bring to the
court's attention that several jurors had seen him in handcuffs, for
failing to argue effectively for a minimal-participant adjustment and
for failing to argue effectively against an upward adjustment for
possession of a dangerous weapon during the offense.
The case was referred to a magistrate judge who issued a report
and recommendation finding that all of Ramirez' contentions were
1
United States v. Martinez-DeLeon, 979 F.2d 208 (Table)
(5th Cir. Nov. 2, 1992) (unpublished), cert. denied, 113 S.Ct.
1434 (1993), and cert. denied, 113 S.Ct. 1828 (1993).
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without merit. Additionally, the magistrate judge found that a
hearing was not necessary. Ramirez filed objections to the
magistrate judge's report, but the district court rejected those
objections and adopted the magistrate judge's recommendation. Thus,
the district judge issued an order denying the relief Ramirez sought.
Ramirez now appeals from that judgment.
II. DISCUSSION
1. Double Jeopardy
In his first point of error, Ramirez contends that his
conspiracy conviction is inconsistent with his acquittal on the
possession charge and violates double jeopardy. This contention is
without merit. This is because a drug conspiracy is a separate and
distinct "offense" for double jeopardy purposes from the underlying
substantive drug offense. United States v. Brown, 29 F.3d 953, 957
(5th Cir.), cert. denied, 115 S.Ct. 587 (1994); United States v.
Rodriguez, 948 F.2d 914 (5th Cir. 1991), cert. denied, 112 S.Ct. 2970
(1992); United States v. Kalish, 734 F.2d 194, 197 (5th Cir. 1984),
cert. denied, 105 S.Ct. 1169 (1985). Therefore, acquittal on the
substantive drug count does not bar conviction on the conspiracy
count.
2. Ineffective Assistance of Counsel
Ramirez argues that his counsel was ineffective at trial because
he failed to move for a mistrial when several jurors saw him in
handcuffs. Moreover, Ramirez contends that his counsel was
ineffective at sentencing because he did not argue effectively for a
minimal-participant adjustment and because he failed to argue
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effectively against the upward adjustment imposed for the possession
of a dangerous weapon during the offense.
To succeed with a claim of ineffective assistance of counsel,
Ramirez would have to show that 1) his trial counsel's performance
was deficient, and 2) that the deficient performance prejudiced his
rights. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,
2064 (1984). If proof of one element is lacking, we need not examine
the other. Kirkpatrick v. Blackburn, 777 F.2d 272, 285 (5th Cir.
1985), cert. denied, 106 S.Ct. 2907 (1986). In order to prove the
prejudice prong of the Strickland test, a defendant must show that
there is a reasonable probability that, but for counsel's
unprofessional errors, the result would have been different. United
States v. Rosalez-Orozco, 8 F.3d 198, 199 (5th Cir. 1993).
Initially, Ramirez alleges that two or three jurors allegedly
saw him in handcuffs outside the courtroom. Ramirez contends that he
related this to his trial counsel, but that his counsel failed to
move for a mistrial and thus was constitutionally ineffective.
This Court has long recognized that an accused person is
presumed innocent and is, therefore, entitled to the physical indicia
of innocence. United States v. Theriault, 531 F.2d 281, 284 (5th
Cir.), cert. denied, 97 S.Ct. 262 (1976). We have also recognized,
however, that "brief and inadvertent exposure to jurors of defendants
in handcuffs is not so inherently prejudicial as to require a
mistrial, and defendants bear the burden of affirmatively
demonstrating prejudice." United States v. Decidue, 603 F.2d 535,
549 (5th Cir. 1979), cert. denied, 100 S.Ct. 1345 (1980); see also,
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United States v. Ware, 897 F.2d 1538, 1542 (10th Cir. 1990) (in
absence of showing of prejudice, fleeting view of defendant in
handcuffs does not justify a new trial), cert. denied, 110 S.Ct. 2629
(1990).
In his brief, Ramirez himself characterizes this alleged
encounter where the jurors saw him as "inadvertent." Moreover, in no
way does Ramirez affirmatively demonstrate any prejudice. Rather,
Ramirez merely suggests that there is a "very distinct possibility"
that the jury was biased by this incident. In light of the
substantial evidence of Ramirez' guilt, this is not sufficient to
meet the prejudice prong of the Strickland test for ineffective
assistance of counsel.
Finally, Ramirez' arguments as to his counsel's ineffectiveness
at sentencing are undercut by this Court's opinion on direct appeal.
First, Ramirez argues that his counsel was ineffective at sentencing
for failing to argue successfully2 for a minimal-participant
reduction under U.S.S.G. § 3B1.2. However, this Court, on direct
appeal, rejected Ramirez' contention that he was entitled to such an
adjustment. Thus, Ramirez cannot show that he was prejudiced by any
such alleged deficiency by counsel.
Lastly, Ramirez contends that his counsel was ineffective for
2
Although unsuccessful, Ramirez' trial counsel did argue
at sentencing for an adjustment to adequately reflect his lesser
role in the offense. Ramirez contends that his counsel was
ineffective, though, because he did not make this argument
strongly enough in that he failed to put forth the proper facts
to support this issue. However, nowhere does Ramirez identify
what facts should have been presented to the sentencing court
that were not presented.
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failing to argue that Ramirez was not aware of the weapon found under
the passenger seat of the pickup he was driving. Again, though, this
Court specifically dealt with this issue on direct appeal. In so
doing, this Court determined that the district court's finding that a
co-defendant's possession of a dangerous weapon was reasonably
foreseeable to Ramirez was sufficient to support the enhancement even
if Ramirez was not actually aware of that possession. R. Vol. 1 at
36-37. Hence, even if counsel's failure to make this argument was
error, Ramirez cannot show that but for that error there was a
reasonable probability that his sentence would have been different.
Thus, Ramirez cannot make out the prejudice showing required under
the Strickland test.
III.CONCLUSION
For the reasons stated above, the judgment of the district court
is AFFIRMED.
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