IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-11393
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DANIEL FLORES-OCHOA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
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April 24, 1998
Before GARWOOD, SMITH, and EMILIO M. GARZA, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
I.
In June 1995, Daniel Flores-Ochoa pleaded guilty to possession
of marihuana with intent to distribute, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(B). On August 28, 1995, he was sentenced to
fifty months’ imprisonment and four years' supervised release.
This sentence was ten months less than the mandatory minimum
sentence of sixty months, but the court applied a provision of the
Violent Crime Control and Law Enforcement Act of 1994 (the “Act”)
that allows a sentence lower than the mandatory minimum in certain
cases.
At the time of the sentencing hearing, the Sentencing
Commission had proposed U.S.S.G. § 2D1.1(b)(4) (1995), which
provided for a two level reduction in the offense level if the
criteria described in the Act are met. If accepted by Congress,
the guideline would have become effective on November 1, 1995. The
parties agree that, had Flores-Ochoa been sentenced when
§ 2D1.1(b)(4) was in effect, he would have qualified for the two-
level reduction.
Although Flores-Ochoa did not initially appeal his sentence,
he filed a 28 U.S.C. § 2255 motion on September 12, 1996, alleging,
among other things, that he had received ineffective assistance of
counsel because he was not informed of his right to appeal. After
a denial of the motion, an appeal to this court, a remand, and an
evidentiary hearing, the district court concluded that Flores-Ochoa
was correct and that he was therefore entitled to an out-of-time
appeal.
We now review, in accordance with this decision of the
district court, Flores-Ochoa’s appeal of his original sentence on
the ground that the Sentencing Commission should have made
§ 2D1.1(b)(4) retroactive. This is a new argument, not made before
the sentencing court, that must be reviewed under the plain error
standard of United States v. Olano, 507 U.S. 725 (1993), and United
States v. Calverley, 37 F.3d 160, 162 (5th Cir. 1994) (en banc).
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II.
A.
We do not accept Flores-Ochoa’s contention that we may review
de novo the Commission’s allegedly ultra vires act because it
affects the jurisdiction of the sentencing court. Irrespective of
whether the Commission acted within its authority, the district
court had ample authority to sentence Flores-Ochoa, and the only
question is whether the court properly interpreted the Guidelines.
Accordingly, we review this argument under a plain error standard.
Flores-Ochoa also sought, in his § 2255 motion, to vacate his
conviction on the grounds that his trial counsel erred by failing
to ask for a reduction for mitigating role and by failing to move
for a downward departure under the safety valve provision. In
addition to his out-of-time appeal, Flores-Ochoa now argues,
apparently relying upon the record in the § 2255 hearing, that his
counsel was ineffective for failing to ask for a continuance until
after the effective date of § 2D1.1(b).
For purposes of this appeal, we will assume, arguendo, that
Flores-Ochoa’s allegation in the district court that his trial
counsel erred in failing to pursue a “downward departure” under the
safety valve encompassed a claim that counsel erred in failing to
seek a continuance. Assuming, without deciding, that this is the
correct approach, we review the denial of § 2255 relief de novo.
B.
Flores-Ochoa argues that Congress demonstrated its intent to
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have the Commission’s guidelines take effect simultaneously with
the effective date of the Act. This argument has some merit; the
Act states that the Commission “shall promulgate guidelines . . .
to carry out the purpose of this section,” and also permits the
Commission to promulgate emergency guidelines if “necessary to do
so” in order that the newly promulgated guidelines “may take effect
on the effective date” of the safety valve amendment.
Pub. L. 103-322 § 80001(b) (1994).
In accordance with this request, the Commission promulgated
U.S.S.G. § 5C1.2 and accompanying application notes, effective
September 23, 1994. This guideline, which became effective on the
effective date of the Act, mimicked the language of the Act,
allowing courts to sentence within the normal guideline range
rather than apply a statutory minimum where the safety valve
criteria applied. Flores-Ochoa obtained the benefit of this
guideline, receiving a sentence ten months lower than that required
by the mandatory minimum for marihuana trafficking.
In May 1995, the Commission submitted U.S.S.G. § 2D1.1(b)(4)1
to Congress. This was an additional measure, passed under the
authority of the safety valve legislation but unnecessary to its
basic objective of making the mandatory minimum sentence
inapplicable in certain cases. It provided a two-level reduction
for those with offense levels above 26 who met the criteria of
§ 5C1.2. The Commission chose not to list this guideline among
1
This guideline is now U.S.S.G. § 2D1.1(b)(6) (1997). Because this case
concerns the 1995 guidelines, however, we refer to the original section number.
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those made retroactive by U.S.S.G. § 1B1.10.
Flores-Ochoa’s creative argument does not convince us to apply
§ 2D1.1(b)(4) retroactively in the face of the Commission’s plain
desire to the contrary. The Commission immediately enacted an
enabling guideline dealing with Congress’s expressed area of
concern. Later, after further reflection, the Commission decided
that an additional provision might be warranted in certain cases,
and adopted it.
Nothing in the Act even suggests that Congress would not have
wanted the Commission to enact additional, non-retroactive
guidelines under the Act, once it had enabled the basic provisions
of the legislation itself. Applying the Calverley plain error
standard, we cannot say that the sentencing court committed any
error in refusing to make § 2D1.1(b)(4) retroactive, let alone that
it was obvious.
III.
Flores-Ochoa argues that his counsel was unconstitutionally
ineffective for failing to move for a continuance in order that
Flores-Ochoa might be sentenced after § 2D1.1(b)(4) took effect.
Whether counsel was ineffective is a mixed question of law and fact
reviewed de novo. See Johnson v. Scott, 68 F.3d 106, 109 (5th Cir.
1995), cert. denied, 116 S. Ct. 1358 (1996). To prove ineffective
assistance of counsel, however, Flores-Ochoa must meet the strict
standard defined by Strickland v. Washington, 466 U.S. 668 (1984).
He must show, first, that counsel’s representation fell below an
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objective standard of reasonableness, and second, that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.
Id. at 688, 694.
Flores-Ochoa cannot satisfy the second prong of Washington.
Even if we assume that his counsel acted improperly by failing to
request a continuance, there is no evidence that the court would
have granted the motion. While we have found ineffective
assistance of counsel where an attorney failed to give the court an
opportunity to exercise its discretion, the case upon which Flores-
Ochoa relies, United States v. Castro, 26 F.3d 557 (5th Cir. 1994),
involved wildly different facts.
In Castro, the attorney failed to move for a Judicial
Recommendation Against Deportation (“JRAD”), a discretionary action
by which a court may prevent the otherwise automatic deportation of
an individual convicted of a “crime involving moral turpitude.”
8 U.S.C. § 1251 (1970) (transferred to 8 U.S.C. § 1227 (1997)).
The JRAD is a specific statutory option available to individuals
convicted of these crimes; it can be used only in limited
situations, and is intended to be considered in each such case.2
In contrast, a motion for continuance can be made in every
class of cases, for innumerable reasons. At the very least, a
holding in favor of Flores-Ochoa on this issue would require
2
See 8 U.S.C. § 1251(b) (deportation provision “shall not apply . . . if
the court sentencing such alien for such crime shall make, at the time of first
imposing judgment or passing sentence, or within thirty days thereafter, a
recommendation to the Attorney General that such alien not be deported. . . .”).
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attorneys to move for continuances in a substantial number of cases
scheduled for sentencing between May and November, where a proposed
guideline might affect the result.
More importantly, in this case we have considerably less
evidence that the court would have granted the motion at issue than
we had in Castro. There, the record contained evidence that Castro
played a minimal role in the conspiracy for which he was convicted,
and that the court had attempted to give the defendant a light
sentence, explicitly stating that he was sentencing him as an adult
rather than as a juvenile because it led to a more favorable
sentencing result. 26 F.3d at 562. Furthermore, Castro had an
American wife and child, factors that would have motivated many
courts to allow him to remain in the United States. Id.
Here, we have no evidence that the court would have been
inclined to grant a motion for a continuance. The mere fact that
Flores-Ochoa likely would have benefited from the continuance is
not sufficient, in itself, to demonstrate that it was “reasonably
probable” that the court would have granted the motion, leading to
the application of the reduction. Because Flores-Ochoa cannot meet
the second prong of Washington, we reject his ineffective
assistance of counsel claim.
The sentence and denial of § 2255 relief are AFFIRMED.
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