                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-30-2002

USA v. Rendon
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-2374




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002

Recommended Citation
"USA v. Rendon" (2002). 2002 Decisions. Paper 470.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/470


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2002 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                  NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT



                           No. 01-2374




                   UNITED STATES OF AMERICA

                                 v.

                   SERGIO LEON RIOS RENDON

                           Sergio Rios R.,

                                      Appellant




   ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
               EASTERN DISTRICT OF PENNSYLVANIA

                (Dist. Court No. 99-cr-226-2)
           District Court Judge: Curtis J. Joyner



          Submitted Under Third Circuit LAR 34.1(a)
                         May 24, 2002

      Before: ALITO, MCKEE, and WALLACE, Circuit Judges.

         (Opinion Filed:                                )




                     OPINION OF THE COURT



PER CURIAM:
          Because the parties are familiar with the background of this appeal, it will
not be set out.
          The first issue presented for review is whether the joint representation of
Rios-Rendon and a co-conspirator prior to sentencing created a conflict of interest that
required the District Court to conduct a colloquy under Fed. R. Crim. P. 44(c). Rule
44(c) provides in relevant part that "[w]henever two or more defendants have been
jointly charged . . . and are represented by the same retained or assigned counsel . . . the
court shall promptly inquire with respect to such joint representation and shall personally
advise each defendant of the right to the effective assistance of counsel, including
separate representation." The record is unclear as to the stage of the proceedings during
which defense counsel represented both defendants; however, each defendant was
represented by separate counsel at sentencing.
          To obtain relief under Rule 44(c), the defendant "must point to an actual
conflict of interest which adversely affected his attorney’s performance." United States
v. Pungitore, 910 F.2d 1084, 1141 (3d Cir. 1990) (citing Burger v. Kemp, 483 U.S. 776,
783 (1987)). In order to establish an actual conflict of interest, the defendant first must
"demonstrate that some plausible alternative defense strategy or tactic might have been
pursued." Duncan v. Morton, 256 F.3d 189, 197 (3d Cir. 2001) (quoting United States v.
Morelli, 169 F.3d 798, 810 (3d Cir. 1999)). This defense need not be successful, but it
must possess sufficient substance to be a viable alternative. Id. Second, a defendant
must "establish that the alternative defense was inherently in conflict with or not
undertaken due to the attorney’s other loyalties or interests." Id. Here, the defendant
alleges that his attorney failed to argue vigorously that he played a minor role in the
conspiracy and therefore should receive a lesser sentence than his co-defendant. The
record demonstrates the contrary. Defense counsel’s cross examinations and arguments
were directly aimed at establishing that the defendant was less culpable than his co-
conspirators. Because the defendant has failed to present the Court with a plausible
alternative defense strategy that counsel failed to advance, this argument fails.
          The second issue presented for review is whether the District Court clearly
erred in its determination of the amount of distributed cocaine attributable to the
defendant for the purpose of determining the applicable range under the Sentencing
Guidelines. The defendant specifically argues that (1) the presented evidence was not
reliable; (2) it included alleged conduct beyond the offense of the conviction that arose in
distinct and separate conspiracies; and (3) he did not have the ability to deliver the
amount of cocaine that Martinez, a confidential informant, requested.
          The government presented testimony and the District Court found that the
defendant and his co-conspirators distributed in excess of 800 kilograms of cocaine. We
review a district court’s "finding of fact supporting an upward adjustment to a sentencing
level for clear error." United States v. Bethancourt, 65 F.3d 1074, 1080 (3d Cir. 1995).
A confidential informant testified that he received "800 kilograms of cocaine to a
thousand" from members of the conspiracy. Appendix at 216. He also testified that he
was to receive 200 kilograms of a 400 kilogram shipment seized by the government. Id.
at 231. A co-conspirator testified that he supplied 170 kilograms of cocaine to the
defendant for distribution to the confidential informant. Id. at 299. This testimony was
corroborated by numerous recorded telephone calls between the defendant, the
confidential informant, and a co-conspirator. The determination of "the credibility of
witnesses is uniquely within the province of the trial court and this court will not review
this determination." United States v. Bethancourt, 65 F.3d 1074, 1081 n. 4 (3d Cir.
1995) (citing Government of Virgin Islands v. Gereau, 502 F.2d 914, 921 (3d Cir.
1974)). The evidence presented by the government supports the District Court’s
conclusion that the defendant distributed 800 kilograms of cocaine, and accordingly, we
find no error.
          The defendant argues that his distribution of cocaine to the confidential
informant prior to March of 1999 is not conduct relevant to the charged offense. We
review this argument for plain error, as it was not raised below. Fed. R. Crim. P. 52(b).
          Relevant conduct includes not only all controlled substances involved
"’during the commission of the offense of conviction,’ but also those substances
involved as ’part of the same course of conduct or common scheme or plan as the offense
of conviction.’" United States v. Boone, 279 F.3d 163, 178 (3d Cir. 2002) (quoting
U.S.S.G. 1B1.3(a)(2)). The Sentencing Guidelines provide that "[t]ypes and quantities
of drugs not specified in the count of conviction may be considered in determining the
offense level." U.S.S.G. 2D1.1 n.12; see also United States v. Boone, 279 F.3d 163,
178 (3d Cir. 2002). As the same type of illegal narcotics was involved in the previous
sales, as well as the same parties and distribution methods, we hold the District Court did
not commit plain error.
          Given the District Court’s finding that the defendant distributed hundreds
of kilograms of cocaine to the confidential informant by March of 1999, defendant’s
argument that he was not capable of delivering the amounts of cocaine found by the
District Court must also fail.
          The third issue presented for review is whether the District Court should
have reduced defendant’s offense-level under the safety-valve provision of the
Sentencing Guidelines, U.S.S.G. 5C1.2. The safety-valve provision allows a two-level
reduction from the offense level if the defendant meets five specified requirements,
including the requirement that, no later than at the time of the sentencing hearing, the
defendant must have "truthfully provided to the government all information and evidence
the defendant has concerning the offense . . . that [was] part of the same course of
conduct or . . . common scheme or plan." The District Court denied the defendant’s
request for a safety-valve reduction because "he was never completely truthful and
straightforward in admitting the totality of his involvement in the quantity of drugs in this
conspiracy." Appendix at 367. We can reject this finding only if we find it was clearly
erroneous. See United States v. Sabir, 117 F.3d 750, 751 (3d Cir. 1997).
          The record establishes that the defendant was responsible for the
distribution of approximately 800 kilograms of cocaine. The defendant maintained
through sentencing that he was responsible for distributing only five kilograms of
cocaine. Because the defendant minimized his role and failed to give a full, forthright
account of his involvement in the conspiracy, the District Court did not err in finding the
safety-valve provision inapplicable. See id. at 754.
          The fourth issue is whether the District Court erred in declining to apply
the minor-role offense-level reduction under U.S.S.G. 3B1.2.    A defendant is entitled
to a minor-role offense-level reduction if he is "less culpable than most other
participants, but [his] role could not be described as minimal." U.S.S.G. 3B1.2 n.5.
The District Court found that the defendant was an equal partner with his co-
conspirators. Our review is for clear error. See United States v. Brown, 250 F.3d 811,
818 (3d Cir. 2001).
          The evidence shows that the defendant supplied large amounts of cocaine
to a confidential informant by March of 1999 and negotiated additional sales in
government-recorded telephone calls. Presented with this evidence, the District Court
did not clearly err in denying a minor-role adjustment.
          The fifth issue is whether the defendant should be allowed to withdraw his
guilty plea because he entered his plea prior to the Supreme Court’s decision in Apprendi
v. New Jersey, 530 U.S. 466 (2000). The defendant argues that he would have
negotiated his plea bargain differently if he had had the benefit of Apprendi and that
therefore his plea was not knowing and intelligent. The District Court engaged in a
lengthy plea colloquy with the defendant and explained the applicable mandatory
sentence range. Appendix at 59-60. The defendant stated that he understood this
explanation prior to entering his guilty plea. Id. at 60. A guilty plea "entered by one
fully aware of the direct consequences . . . must stand"; therefore, this argument fails.
Mabry v. Johnson, 467 U.S. 504, 509 (1984).
          The sixth issue is whether Apprendi rendered the statutory scheme of 21
U.S.C. 841 unconstitutional. This issue is directly foreclosed by United States v.
Vazquez, 271 F.3d 93, 98 (3d. Cir. 2001) (en banc). See also United States v. Williams,
235 F.3d 858, 863 (3d Cir. 2000). In Vazquez, we held that an Apprendi violation only
occurs where the drug quantity is not found beyond a reasonable doubt and the sentence
exceeds the maximum sentence allowed under 18 U.S.C. 841. Vazquez, 271 F.3d at
98. As the District Court sentenced the defendant below the statutory maximum prison
term, we find no Apprendi violation.
          Accordingly, the defendant’s conviction and sentence are affirmed.
