                                                                     F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      June 29, 2006
                                   TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                      Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff - Appellee,
                                                       No. 05-8071
 v.                                             (D.C. No. 04-CR-152-ABJ)
                                                        (D . W yo.)
 JESUS M AR TIN SAGA STE-CRU Z,

          Defendant - Appellant.



                              OR D ER AND JUDGM ENT *


Before KELLY, M cKA Y, and O’BRIEN, Circuit Judges.


      Defendant-Appellant Jesus M artin Sagaste-Cruz appeals from his

conviction and sentence following a jury verdict finding him guilty of conspiring

to traffic in methamphetamine in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(A), and 846. M r. Sagaste-Cruz was sentenced to life imprisonment and

a $2,500 fine. The jury’s verdict included a finding that the amount of

methamphetamine exceeded forty-five kilograms. M r. Sagaste-Cruz also received

a two-level upward adjustment based on a co-conspirator’s possession of a




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
firearm during the offense, see United States Sentencing Guidelines § 2D1.1(b)(1)

(2004) (“U.S.S.G.” or “Guidelines”), and a four-level upward adjustment for an

aggravating role in the offense as an organizer or leader. See U.S.S.G. § 3B1.2.

      On appeal, M r. Sagaste-Cruz challenges his sentence, contending that: (1)

the district court erred in imposing a life sentence because that sentence was

based on erroneous post-trial findings of fact and that his sentence is

unreasonable under United States v. Booker, 543 U.S. 220 (2005); (2) the district

court plainly erred in allowing the introduction of evidence concerning his prison

record, street gangs, evidence of other unrelated drug activity in the area w here

M r. Sagaste-Cruz was living, and evidence relating to multiple conspiracies

supported by co-conspirator hearsay; (3) the government failed to timely file and

serve M r. Sagaste-Cruz with the required information relating to its pursuit of an

enhancement under 21 U.S.C. § 851; (4) M r. Sagaste-Cruz’ trial counsel was

ineffective, and he w as denied a fair trial; and (5) the district court’s jury

selection procedure violated his right to a fair trial. Our jurisdiction arises under

28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.



                                      Background

      In recounting the evidence, we view the facts in the light most favorable to

the verdict. M r. Sagaste-Cruz and his brother Julio Sagaste-Cruz (“Julio”) are

M exican nationals. M r. Sagaste-Cruz was arrested in September 1996 and

                                           -2-
charged with distributing methamphetamine in South Dakota. He was convicted

and sentenced to ten years imprisonment. The sentence was commuted, and he

was deported to M exico in July 1998. He illegally reentered the U nited States a

few months later.

      In the mid-1990s, M r. Sagaste-Cruz and Julio operated their

methamphetamine distribution operation out of Ogden, Utah. At trial, testimony

indicated that while M r. Sagaste-Cruz was incarcerated, Julio became acquainted

with Patricio Pena, and shortly thereafter, in the spring of 1997, M r. Pena began

transporting methamphetamine for Julio from Ogden and selling it in Riverton,

W yoming, where he lived. In 1998, Julio met Brenda Hillian, and she began

selling methamphetamine for him in 2001.

      M r. Sagaste-Cruz returned from M exico in the fall of 1998. Around this

time, M r. Pena introduced Julio to one of his Riverton customers, Vance Gilliam,

because he knew that M r. Gilliam needed to make money. M r. Gilliam began

transporting bulk quantities of methamphetamine from Los Angeles to Ogden for

Julio. M r. Gilliam also began transporting methamphetamine from Ogden to

Riverton at the direction of both M r. Sagaste-Cruz and Julio. Aplt. App. at 454,

462. There was some disagreement between Julio and M r. Pena, however, and

Julio and M r. Sagaste-Cruz discontinued their dealings w ith M r. Pena. Julio

married Kristy Kucera, and she began transporting methamphetamine from Ogden

to Riverton as w ell.

                                        -3-
      In M arch of 2002, M ike and Sheryl Griebel began selling

methamphetamine for M r. Sagaste-Cruz in Riverton. According to their

testimony, M r. Sagaste-Cruz would either personally deliver the

methamphetamine or one of his Riverton distributors would do so. After her

husband was arrested and incarcerated for distributing methamphetamine, M rs.

Griebel began selling the methamphetamine she obtained from M r. Sagaste-Cruz.

One of her customers, Shane Pingree, took over her customer base at the request

of M r. Sagaste-Cruz when she was arrested. Lastly, Geraldine Blackburn, a

methamphetamine user in Riverton, testified that she witnessed M r. Sagaste-Cruz

conducting drug transactions in her home and ordering her boyfriend Carlos 1 to

distribute quantities of methamphetamine and collect payments. Around this

same time M s. Blackburn began selling to various other users in Riverton and on

the W ind River Indian Reservation.

      According to the Pre-Sentence Report (“PSR”), M r. Sagaste-Cruz was

responsible for more than 61.2 kilograms of methamphetamine. The PSR

determined that whether the court utilized 61.2 kilograms, or the 45 kilograms

used by the jury, the result would be the same. The PSR recommended that M r.

Sagaste-Cruz receive a two-level upward adjustment because it was reasonably

foreseeable to M r. Sagaste-Cruz that M r. Gilliam was carrying a firearm while




      1
          Carlos was later identified as M arcelino Rocha and Juan Carlos M endoza.

                                         -4-
participating in the conspiracy. It also suggested a four-level upward adjustment

for M r. Sagaste-Cruz’ supervisory role in the offense. As such, the adjusted

offense level was 44, and together with M r. Sagaste-Cruz’ criminal history

category of III, the guideline range was life imprisonment.



                                    Discussion

A.    District Court’s Factual Findings

      M r. Sagaste-Cruz first argues that the district court erred in imposing a life

sentence because that sentence was based on erroneous post-trial factual findings.

He contends that the government was required to prove the upward adjustments

under § 2D 1.1(b)(1) and 3B1.1(a) to the jury. The government disagrees,

contending that the district court’s findings were permissible under Booker.

      M r. Sagaste-Cruz argues that, following Booker, the district court erred in

calculating his sentence. He has properly preserved this argument by objecting at

sentencing that, under Blakely v. W ashington, 542 U.S. 296 (2004) and Booker,

the district court erroneously took into account judge-found facts in applying a

four-level upward adjustment to his base offense level. The district court adopted

the PSR’s recommendations for the two upward adjustments. W here a defendant

preserves a potential Booker error, w e will remand unless the error is harmless.

See United States v. Labastida-Segura, 396 F.3d 1140, 1142-43 (10th Cir. 2005);

Fed. R. Crim. P. 52(a).

                                          -5-
      There are two types of error under Booker: non-constitutional error and

constitutional error. United States v. Visinaiz, 428 F.3d 1300, 1315 (10th Cir.

2005). Non-constitutional error derives from the so-called remedial portion of

Booker, which severed the statutory provision requiring mandatory application of

the Guidelines in most cases. Booker, 543 U.S. at 258-59 (severing 18 U.S.C. §

3553(b)(1)). This severance has rendered the Guidelines advisory, although

sentencing courts must still consult the Guidelines and the factors of 18 U.S.C. §

3553(a). Id. at 264. Appellate courts will reverse a sentence if it is deemed

unreasonable. Id.; see also United States v. Sanders, --- F.3d ----, 2006 W L

1376962, at *3 (10th Cir. M ay 16, 2006) (explaining that a sentence may be

unreasonable based upon its length or the method in which it w as calculated).

Constitutional Booker error, on the other hand, occurs in the context of a

mandatory sentencing regime when a judge-found fact (other than the fact of a

prior conviction) increases a defendant’s sentence beyond the maximum

authorized by a jury verdict or a guilty plea through the court’s application of the

mandatory guidelines. Booker, 543 U.S. at 244.

      In this case, because the district court did not consider the guidelines

m andatory, there w as no B ooker error, constitutional or non-constitutional. At

sentencing, the district court acknowledged the Guidelines, but exercised its

discretion and sentenced M r. Sagaste-Cruz to a life sentence. Therefore, because

the district court did not treat the Guidelines as mandatory, there can be no

                                         -6-
non-constitutional Booker error in M r. Sagaste-Cruz’ sentence. See Visinaiz, 428

F.3d at 1316. Booker is perfectly pellucid insofar as it does not prohibit the

district court from making factual findings and applying various adjustments to a

defendant as long as it did not view or apply the Guidelines as mandatory.

Booker, 543 U.S. at 233 (“If the Guidelines as currently written could be read as

merely advisory provisions that recommended, rather than required, the selection

of particular sentences in response to differing sets of facts, their use would not

implicate the Sixth Amendment.”). Of course, the district court must consider the

guidelines in fashioning a sentence. United States v. Kristl, 437 F.3d 1050, 1053

(10th Cir. 2006)

      To the extent that M r. Sagaste-Cruz is arguing error in the district court’s

application of the Guidelines to include the two-level upward adjustment based on

his co-conspirator’s possession of a gun, we disagree. W e review a district

court’s legal application of the guidelines post-Booker de novo, and its supporting

findings of fact for clear error. Kristl, 437 F.3d at 1054. The district court

considered testimony from both the co-conspirator himself and law enforcement

officials, as well as the government’s proffer at sentencing. It is axiomatic that

the government bears the initial burden to prove possession of the weapon by a

preponderance of the evidence. See United States v. Smith, 131 F.3d 1392, 1400

(10th Cir. 1997). Yet it is likewise axiomatic that in a conspiracy case the

government need not prove that the defendant himself possessed the firearm. See

                                         -7-
id.

      Accordingly, the district court can attribute to a defendant the possession of

firearms by a co-conspirator if that possession was known or reasonably

foreseeable to that defendant. Id. Once the government meets this standard, it is

incumbent upon the defendant to show that it is “clearly improbable” that the

weapon was connected to the offense. United States v. Vaziri, 164 F.3d 556, 568

(10th Cir. 1999). W e conclude that while the government has more than met its

burden in this case, M r. Sagaste-Cruz has failed to show that it is “clearly

improbable” that M r. Gilliam’s possession of a handgun while traveling in his

vehicle with methamphetamine was connected to their ongoing conspiracy.

      As an initial matter, it is true that M r. Gilliam indicated in his testimony

that he initially and primarily dealt with Julio. Nevertheless, his testimony also

quite starkly paints a picture revealing M r. Sagaste-Cruz as extensively involved

in the conspiracy as w ell, particularly insofar as M r. Gilliam unambiguously

testified that when Julio was away he dealt with M r. Sagaste-Cruz. Aplt. App. at

444. M r. Gilliam w as also forthcoming regarding his arrest for distributing

methamphetamine and admitted that his sentence reflected that he possessed a

firearm. Id. at 438. Furthermore, the government presented evidence of this

arrest by the arresting law enforcement officers. Id. 472-86. Lastly, the PSR

clearly reinforces M r. Gilliam’s admission here, because it provided the district

court with the information pertaining to his two-count conviction — one for

                                         -8-
conspiracy to possess with intent to distribute methamphetamine and the other for

carrying/use of a firearm in relation to a drug trafficking crime. Id. at 846.

      Indeed, it hardly strains judicial credulity to think that M r. Sagaste-Cruz

knew or could foresee that M r. Gilliam was carrying a weapon. To the contrary,

it is quite common for drug dealers to carry weapons to protect their merchandise,

their cash receipts, and to intimidate potential purchasers. See United States v.

Becker, 230 F.3d 1224, 1231 (10th Cir. 2000); see also United States v.

Nicholson, 983 F.2d 983, 990 (10th Cir. 1993). As for M r. Sagaste-Cruz’

contention that there was never any explicit testimony by M r. Gilliam or the law

enforcement officers that M r. Gilliam possessed a firearm at the time of his arrest,

we are afraid that such an argument simply proves too much. As elaborated

above, there was more than ample evidence for the district court to apply this

enhancement, and we find no error in the district court’s decision to attribute the

possession of the gun to M r. Sagaste-Cruz.

      W ith regard to the supervisor/leader upward adjustment, the district court

must find, by a preponderance of the evidence, that: (1) at least five persons were

involved or participated in the criminal venture; and (2) that the defendant either

exercised leadership control or supervision over at least one other participant, or

that the defendant functioned as an organizer of the criminal activity, even if he

did not directly supervise or control any specific subordinates. See United States

v. Cruz-Camacho, 137 F.3d 1220, 1224 (10th Cir. 1998); United States v. Valdez-

                                         -9-
Arieta, 127 F.3d 1267, 1270-72 (10th Cir. 1997). In order to qualify as a

supervisor or leader, M r. Sagaste-Cruz need only have supervised one subordinate

in the conspiracy. United States v. Apperson, 441 F.3d 1162, 1211 (10th Cir.

2006). The district court is also entitled to take into account all relevant conduct.

      Once again, we find no error in the district court’s determination. The

government’s evidence clearly showed that M r. Sagaste-Cruz and his brother

Julio recruited, supervised, and led a multi-state methamphetamine trafficking

scheme over the course of several years. The government provided evidence that

there were at least ten other individuals involved in the conspiracy to distribute

methamphetamine, led by M r. Sagaste-Cruz and his brother, and the jury clearly

credited that testimony. Accordingly, we are satisfied that there was no error

(Booker or otherwise) in either the two-level enhancement for possession of a

weapon or the four-level enhancement for his supervisory and leadership role.

      M r. Sagaste-Cruz also argues that the sentence was unreasonable under

Booker. He contends that the district court afforded the Guidelines “heavy

weight” and “in light of the two enhancements,” the result is unreasonable. A plt.

Br. at 22. W e have held a properly calculated sentence that is within the

Guidelines range is presumptively reasonable. Kristl, 437 F.3d at 1054. Here, as

noted above, the district court used the Guidelines as its starting point — not

mandatorily — apparently considered the factors in 18 U.S.C. § 3553(a), as it was

required to do, and arrived at a sentence within the Guideline range. As a result,

                                        - 10 -
we cannot say that M r. Sagaste-Cruz’ sentence was unreasonable.

B.     Evidentiary Issues

       M r. Sagaste-Cruz next argues that the district court erred in allowing

evidence concerning his prison record, street gangs, evidence of other unrelated

drug activity in the area where M r. Sagaste-Cruz was living, and evidence relating

to multiple conspiracies. The government contends that all of M r. Sagaste-Cruz’

arguments were adequately and properly addressed by the district court, and as

such, present no error.

       As an initial matter, we note that M r. Sagaste-Cruz failed to raise all of

these arguments before the district court, and thus are review ed only for plain

error. Visinaiz, 428 F.3d at 1308. As such, M r. Sagaste-Cruz must demonstrate

that the district court committed (1) error, (2) that is plain, and (3) that the error

affects his substantial rights. Id. If this show ing is made, we may only exercise

discretion to correct the error if it “seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Id. (internal quotations omitted).

       M r. Sagaste-Cruz first argues that the testimony of M s. Kucera improperly

mentioned that he had been in prison. His attorney promptly requested a

cautionary instruction from the district court, and the district court gave such an

instruction. W e reject the notion that such an instruction was insufficient, and

accordingly, we find no error on this point, plain or otherwise. Zafiro v. United

States, 506 U.S. 534, 540-41 (1993) (noting that “juries are presumed to follow

                                          - 11 -
their instructions”) (internal quotations omitted). M r. Sagaste-Cruz next argues

that the testimony of M s. Hillian improperly mentioned her other drug dealing

contacts, including a nation-wide street gang, the 18th Streeters. To the contrary,

M s. Hillian’s testimony on these points w as extremely brief, and we cannot say it

amounted to reversible error. Indeed, despite M r. Sagaste-Cruz’ arguments to the

contrary, our review indicates no attempt by the government to insinuate that M r.

Sagaste-Cruz was involved with these transactions, nor that the amounts of

methamphetamine used to determine M r. Sagaste-Cruz’ sentence incorporated any

of M s. Hillian’s dealings w ith the 18th Streeters. Rather, for these purposes, it is

quite clear that both the trial testimony and the PSR focus on M s. Hillian’s

dealings with M r. Sagaste-Cruz in 2003, years after her dealings with the street

gang. See Aplt. App. at 854-55. As such, we find no error here, plain or

otherwise.

      M r. Sagaste-Cruz next argues that the district court improperly allowed

evidence that exceeded the scope of the single conspiracy in the indictment. The

government, for reasons quite beyond our ken, chose not to respond directly to

this contention. To prove a conspiracy to traffic in methamphetamine in violation

of 21 U.S.C. § 846, the government had to prove the following elements beyond a

reasonable doubt: (1) an agreement with another person to violate the law; (2)

knowledge of the essential objectives of the conspiracy; (3) knowing and

voluntary involvement; and (4) interdependence among the alleged

                                         - 12 -
coconspirators. United States v. M ontelongo, 420 F.3d 1169, 1173 (10th Cir.

2005). Though M r. Sagaste-Cruz repeatedly complains that he was tried based

upon the witnesses’ long history of drug dealing with persons he had no

connection with, the government more than sufficiently linked the defendant and

the various witnesses. It is well settled that in order to prove a conspiracy, the

government can elicit testimony from the witnesses about their customers and

associates. See United States v. Faulkner, 439 F.3d 1221, 1226 (10th Cir. 2006)

(noting that co-conspirator statements about historical events or individuals is

offered to prove the conspiracy existed, not that the actual events existed).

      M r. Sagaste-Cruz argues that because the district court did not follow the

preferred order of proof regarding co-conspirator hearsay by electing to

conditionally admit that evidence subject to later connection, evidence concerning

multiple conspiracies, persons, and unrelated bad acts was admitted. Co-

conspirator statements are admissible as nonhearsay under Fed. R. Evid.

801(d)(2)(E). Before admitting such statements, the trial court must determine:

(1) a conspiracy existed; (2) the evidence shows the declarant and the defendant

were members of the conspiracy; and (3) the statements were made during the

course of and in furtherance of the conspiracy. United States v. Sinclair, 109

F.3d 1527, 1533 (10th Cir. 1997).

      The preferred order of proof requires the government to introduce evidence

of the conspiracy before the admission of co-conspirator statements, but

                                         - 13 -
alternatively, the district court has discretion to admit such testimony

conditionally — subject to its connection by independent evidence. Id. at 1533-

34. The district court chose this latter route and made its ruling after the close of

the evidence, as M r. Sagaste-Cruz did not put on any evidence. Aplt. App. at

685-86. To that end, the district court referenced its notes concerning the

testimony of Patricio Pena and Kristy Kucera. Id. at 687-88. Patricio Pena

testified that Julio informed him that M r. Sagaste-Cruz would one day be taking

over the business and that M r. Sagaste-Cruz provided M r. Pena with two ounces

of methamphetamine and picked up a car in payment of a drug debt. See id. at

337, 346-347, 356-58. Kristy Kucera testified that Julio told her that M r.

Sagaste-Cruz did not care for her because as a drug user, she was bad for

business. Id. at 424-25.

      The testimony of the various witnesses summarized at the outset

established a conspiracy to distribute methamphetamine at trial and M r. Sagaste-

Cruz’s participation in it. The hearsay statements were in furtherance of the

conspiracy, and as such, the district court did not abuse its discretion in admitting

the hearsay evidence. The Sagaste-Cruz brothers w ere clearly operating to

distribute methamphetamine together, and we conclude that the government more

than adequately proved up the underlying conspiracy as w ell as its participants

with ample evidence independent of the statements themselves. See Bourjaily v.

United States, 483 U.S. 171, 181 (1987); see also United States v. Lopez-

                                         - 14 -
Gutierrez, 83 F.3d 1235, 1242 (10th Cir. 1996). Accordingly, we find no error

here, plain or otherwise.

C.    Enhancement Information

      M r. Sagaste-Cruz also argues that the government failed to timely file and

serve an enhancement information pursuant to 21 U.S.C. § 851, arguing that this

would be a jurisdictional defect. The enhancement was based on M r. Sagaste-

Cruz’ 1996 South Dakota felony drug possession conviction. The government

disputes this argument, pointing out that the information was filed approximately

three months prior to commencement of the trial. See Aplt. A pp. at 38-40.

      As an initial matter, we recently held that timely filing and service of the

information enhancement is not jurisdictional. United States v. Flowers, 441 F.3d

900, 903 (10th Cir. 2006). M r. Sagaste-Cruz argues that he was only personally

served with a Spanish-language version of the information. Unfortunately for M r.

Sagaste-Cruz, however, under § 851(a) the government may serve either the

defendant or his attorney. The government clearly met the statutory requirements

by serving both M r. Sagaste-Cruz and his lawyer. See Aplt. App. at 1, 38-39. 2




      2
        M r. Sagaste-Cruz also appears to argue that he was not “properly arraigned
at the commencement of the jury trial.” Aplt. Br. at 36. This argument is, quite
frankly, confounding. Nowhere in the statutory language of § 851 resides an
arraignment requirement. To the contrary, all that is required is that the district
court, at some point between conviction and the entry of the sentence, must
inquire of the defendant whether he affirms or denies the prior conviction. This
clearly occurred here. Aplt. App. at 789.

                                        - 15 -
D.    Ineffective Assistance of Counsel

      M r. Sagaste-Cruz argues that his trial counsel was ineffective, and that as

the record has been sufficiently developed on this issue regarding many instances

of ineffectiveness, this court should reach the merits. The government counters,

arguing that an insufficient record has been established for review. W e have

repeatedly stated that absent extraordinary situations, we will not entertain an

ineffective assistance of counsel claim on direct review. United States v.

Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). W e adhere to that

general rule here as w ell, because there is simply an insufficient record to

determine the merits of this contention, and we think it preferable that the district

court consider the claim first. Id.

E.    Jury Selection

      M r. Sagaste-Cruz’ last contention is that he was denied a fair trial by virtue

of the manner in which the jury selection process was carried out. Specifically,

he argues that the district court’s questioning of the venire panel on the subject of

methamphetamine created “bias and prejudice.” Aplt. Br. at 46. M r. Sagaste-

Cruz also argues that Hispanics were under represented on the jury panel. The

government, once again, summarily dismisses the merit of these arguments.

      W e note again that as M r. Sagaste-Cruz raises these issues for the first time

on appeal, we review for plain error. Visinaiz, 428 F.3d at 1308. W ith regard to

the district court’s questioning of the jury panel on the subject of drug use, our

                                         - 16 -
review of the record clearly shows that these questions were asked so as to ensure

that the potential jury members were not prejudiced given the subject matter of

the trial, i.e., the distribution of methamphetamine. See Aplt. App. at 151 (noting

that the questions regarding family members use of drugs w ould be “fairly

touchy”); id. at 152-53 (repeatedly asking the venire members if their past

experience, whether direct or indirect, would “influence [their] ability to listen to

the evidence . . . and to consider both sides of [the] case?”). W e reject the notion

that the district court was required, sua sponte, to consider the answers in camera,

or to limit the responses of the venire. As such, we conclude that M r. Sagaste-

Cruz has failed to show error, plain or otherwise.

      W ith regard to the jury composition argument, we are unpersuaded. W hile

M r. Sagaste-Cruz does cite Duren v. M issouri, 439 U.S. 357 (1979), for the

proposition that a jury venire with a makeup averaging less than 15% women

violates the Constitution’s fair-cross-section requirement, his only cognizable

argument is that the actual jury panel contained “no persons w ith Hispanic

surnames.” Aplt. Br. at 49. M r. Sagaste-Cruz fails to elaborate on this argument

any further other than to point out that persons of Hispanic or Latino origin

constitute 6.4% of W yoming’s population. W e do not consider arguments not

properly developed in the briefs. Phillips v. Calhoun, 956 F.2d 949, 953-54 (10th

Cir. 1992); Fed. R. App. P. 28(a)(9).

      In closing, we note that this case illustrates counsel’s need for

                                         - 17 -
conscientious and careful review of written legal materials prior to submission to

this court. W hile M r. Sagaste-Cruz’ brief contained numerous logical leaps and

specious contentions, we are dismayed by the cold reality that the government’s

brief was hardly better. In particular, while the government labels M r. Sagaste-

Cruz’ three evidentiary arguments – including those involving the preferred order

of proof and the existence of single versus multiple conspiracies – as “confusing,

incoherent, and conclusory in nature,” see Aplee. Br. at 29, we are sincerely

troubled by the government’s “effort” to rebut M r. Sagaste-Cruz’ arguments on

these issues.

      Indeed, counter to the demands of Fed. R. App. P. 28(b), the government

addresses these three arguments in approximately one page of its brief, and

dismisses all three, with nary a citation to relevant legal authority and with

absolutely no argument, concluding with the summary contention that these

“claims fail because he fails to show any error at all.” Aplee. Br. at 29. A brief

that employs summary dismissals, a severe paucity of authority, and such a

blatant refusal to respond to argument not only consumes more time, but also may

be somewhat less than persuasive. 3 W e hope that counsel grasps this problem as




      3
       W e further note that while restyling the order of the appellant’s arguments
in an appellee’s brief is sometimes useful, that brief still must fully and
adequately address all of the arguments raised by the appellant. Failure to do so
ignores basic rules of appellate advocacy.

                                         - 18 -
well as its concomitant responsibility to correct it.

      A FFIR ME D.


                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




                                         - 19 -
