                                                           FILED
                                               United States Court of Appeals
                UNITED STATES COURT OF APPEALS         Tenth Circuit

                       FOR THE TENTH CIRCUIT                         June 12, 2018
                     _________________________________
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff–Appellee,

v.                                                  No. 17-8068
                                        (D.C. Nos. 2:15-CV-00223-SWS and
SIGIFREDO MOLINA-VARELA,                      2:13-CR-00004-ABJ-2)
                                                     (D. Wyo.)
       Defendant-Appellant.
                   _________________________________

                        ORDER AND JUDGMENT *
                     _________________________________

Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
               _________________________________

      Mr. Sigifredo Molina-Varela went to trial with his wife as a

codefendant on criminal charges of conspiracy and possession of a firearm

in furtherance of a drug felony. 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846; 18

U.S.C. § 924(c)(1)(A). Mr. Molina-Varela was convicted on these charges

and unsuccessfully moved to vacate his conviction based on ineffective



*
      The parties have consented to submission on the briefs, and oral
argument would not help us decide the appeal. See Fed. R. App. P.
34(a)(2)(C); 10th Cir. R. 34.1(G). Thus, we have decided the appeal based
on the briefs.

      Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
assistance of counsel. He appeals, arguing that his trial attorney was

ineffective by failing to move for severance. We reject this argument.

     In his motion to vacate, Mr. Molina-Varela alleged that his trial

attorney had failed to file any substantive pretrial motions. There,

however, Mr. Molina-Varela did not identify any motions that he thought

should have been filed. He waited to do so until his reply brief, where he

identified eight types of motions that he thought should have been filed.

One of these was a motion for severance. But even in his reply brief, Mr.

Molina-Varela did not explain to the district court why his attorney should

have filed a motion for severance. Thus, a threshold issue is whether Mr.

Molina-Varela forfeited the argument in district court. For the sake of

argument, we may assume that the issue was preserved.

     If the issue had been preserved, we would consider whether Mr.

Molina-Varela had shown ineffective assistance of trial counsel. To

prevail, Mr. Molina-Varela had to prove that his attorney’s representation

was deficient and prejudicial. Strickland v. Washington, 466 U.S. 668, 687

(1984). Representation is deficient if it falls “below an objective standard

of reasonableness.” Id. at 688.

     Objective reasonableness is a “‘highly deferential’” standard. Grant

v. Royal, 886 F.3d 874, 903 (10th Cir. 2018) (quoting Byrd v. Workman,

645 F.3d 1159, 1168 (10th Cir. 2011)), applic. for reh’g filed (May 23,

2018) (No. 14-6131). Under this standard, we engage in two presumptions.

                                      2
First, we presume that Mr. Molina-Varela’s trial counsel provided adequate

assistance and acted reasonably in exercising professional judgment. Id.

Second, we presume that in a conspiracy trial, the alleged co-conspirators

should be tried together. United States v. Clark, 717 F.3d 790, 817 (10th

Cir. 2013); United States v. Pursley, 577 F.3d 1204, 1215 (10th Cir. 2009).

These dual presumptions preclude relief on the ineffective-assistance

claim. 1

      If Mr. Molina-Varela’s attorneys had moved for a severance, they

would have had to overcome the presumption favoring a joint trial on the

conspiracy charges. In the face of this presumption, Mr. Molina-Varela

does not

          tell us how his trial attorney could have overcome this
           presumption or

          identify any prejudice from a joint trial with his wife.

      Mr. Molina-Varela contends that severance was appropriate because

          he had left the conspiracy more than a year prior to his arrest
           and

          events post-dating his withdrawal from the conspiracy should
           not have been used against him.




1
      The district court did not reject Mr. Molina-Varela’s claim on this
ground. Instead, the court rejected the claim on the basis of Mr. Molina-
Varela’s failure to allege prejudice. But we may affirm the district court’s
decision on any basis supported by the record. United States v. Pam, 867
F.3d 1191, 1195 n.1 (10th Cir. 2017).
                                      3
But Mr. Molina-Varela confessed that he had received shipments as part of

the conspiracy only about three months prior to arrest. In light of this

confession, Mr. Molina-Varela’s trial counsel could reasonably have

viewed a motion for severance as futile.

      Mr. Molina-Varela argues that he was under the influence of drugs

while confessing. But his attorney had already argued unsuccessfully for

suppression of the confession on this basis. In light of the district court’s

decision not to suppress the confession, the trial attorney could reasonably

have decided not to move for a severance. As a result, we conclude that

Mr. Molina-Varela has not shown that his attorney’s representation was

deficient.

      Affirmed.



                                    Entered for the Court




                                    Robert E. Bacharach
                                    Circuit Judge




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