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

                       FOR THE TENTH CIRCUIT                     August 1, 2016
                       _________________________________
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
                                                     No. 16-7021
v.                                         (D.C. Nos. 6:12-CV-00436-RAW
                                            & No. 6:09-CR-0037-RAW-1)
RODOLFO SANABRIA SANCHEZ,                            (E.D. Okla.)

       Defendant-Appellant.

                        _________________________________

     ORDER DENYING A CERTIFICATE OF APPEALABILITY AND
                  DISMISSING THE APPEAL
                  _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                        _________________________________

      Mr. Rodolfo Sanchez was convicted in federal court on drug charges.

After an unsuccessful appeal, Mr. Sanchez moved to vacate his conviction

under 28 U.S.C. § 2255. The district court denied Mr. Sanchez’s motion to

vacate and declined to grant a certificate of appealability.

      Mr. Sanchez now asks our court for a certificate of appealability so

that he can appeal on grounds of ineffective assistance of counsel and

cumulative error. We conclude that these claims are not reasonably

debatable. Accordingly, we deny Mr. Sanchez’s request for a certificate of

appealability and dismiss the appeal.
I.    Standard for a Certificate of Appealability

      To appeal, Mr. Sanchez needs a certificate of appealability. 28

U.S.C. § 2253(c)(1)(B). To receive a certificate, Mr. Sanchez must make a

“substantial showing of the denial of a constitutional right.” 28 U.S.C.

2253(c)(2); Miller–El v. Cockrell, 537 U.S. 322, 336 (2003). A substantial

showing has been made only if we are able to conclude that reasonable

jurists could regard the district court’s rulings as debatable or wrong. See

Laurson v. Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007).

II.   Ineffective-Assistance Claims

      Mr. Sanchez alleges ineffective assistance of counsel based on his

           trial counsel’s failure to allege a constructive amendment of
            the indictment and

           appellate counsel’s failure to allege that trial counsel had a
            conflict of interest and that the district court should have
            granted a motion to suppress.

      A.    The Test for Ineffective Assistance of Counsel

      We analyze these claims under Strickland v. Washington, 466 U.S.

668 (1984). Strickland establishes a two-part burden for Mr. Sanchez.

First, he must show that his counsel’s representation was deficient by

falling “below an objective standard of reasonableness.” Id. at 687-88.

Second, Mr. Sanchez must show that the deficiency was prejudicial. Id. at

692. The alleged deficiency was prejudicial only if “there is a reasonable




                                      2
probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694.

      B.      Trial Counsel

      Mr. Sanchez contends that his trial counsel was ineffective by failing

to object to evidence of uncharged offenses. To Mr. Sanchez, the

prosecution’s use of this evidence served to constructively amend the

indictment.

      Evaluation of the prejudice prong involves two inquiries:

      1.      What would the district court have done if defense counsel had
              objected?

      2.      What would we have done if the district court had overruled the
              objection?

The district court would have overruled the objection, and we would have

upheld that ruling.

      On the first inquiry, the district court was ideally suited to answer

because it had already addressed the evidentiary issue and knew how it

would have ruled if defense counsel had objected at trial. See Blackledge v.

Allison, 431 U.S. 63, 74 n.4 (1977). 1 Before trial began, the court had

quizzed the attorneys about the evidence of uncharged offenses and

1
      In Blackledge, the Supreme Court stated: “Unlike federal habeas
corpus proceedings, a motion under § 2255 is ordinarily presented to the
judge who presided at the original conviction and sentencing of the
prisoner. In some cases, the judge’s recollection of the events at issue may
enable him summarily to dismiss a § 2255 motion, even though he could
not summarily dispose of a habeas corpus petition challenging a state
conviction but presenting identical allegations.” 431 U.S. at 74 n.4.
                                       3
expressed a preliminary ruling that the evidence would be admissible under

Fed. R. Evid. 404(b)(2). And after the trial, the court confirmed that it

would have overruled an objection made at trial because the evidence was

intrinsic to the charged conduct. In these circumstances, no reasonable

jurist would expect the district court to have sustained an objection if it

had been made. See Gustave v. United States, 627 F.2d 901, 904 (9th Cir.

1980) (“Considering that the same judge denied an identical motion to

suppress at the first trial, we do not believe petitioner’s case was

prejudiced by his attorney’s failure to make [a similar motion to suppress]”

at a second trial); Bynum v. Lemmon, 560 F.3d 678, 685-86 (7th Cir. 2009)

(concluding that the district court’s post-conviction findings showed that

the defendant had not been prejudiced from defense counsel’s failure to

file a motion to suppress).

      Nonetheless, if his counsel had unsuccessfully objected to the

evidence, Mr. Sanchez might have appealed. Had Mr. Sanchez done so,

though, we undoubtedly would have rejected his appeal point.

      The U.S. Constitution forbids constructive amendment of an

indictment. United States v. Farr, 536 F.3d 1174, 1180 (10th Cir. 2008).

An indictment is constructively amended when the evidence and jury

instructions make it possible to convict the defendant for something not

charged in the indictment. United States v. Apodaca, 843 F.2d 421, 428

(10th Cir. 2008). In assessing this possibility, we compare the indictment

                                       4
with the district court proceedings to determine if those proceedings

broadened the basis for a conviction. Farr, 536 F.3d at 1180.

      The indictment was short and specific, alleging that Mr. Sanchez

knowingly and intentionally possessed, with the intent to distribute, at

least 500 grams of a methamphetamine mixture on or about March 13,

2009. In light of this allegation, the government presented extensive

evidence of a controlled sale to Mr. Sanchez on March 13, 2009.

      The government also presented evidence that the seller had made

similar deliveries in the past. According to Mr. Sanchez, that evidence

broadened the possible basis for a conviction. But our court would have

rejected that argument, for the district court instructed the jury at the close

of the evidence: “The Defendant is on trial only for the crime charged in

the indictment, not for any other acts or conduct.” Jury Instructions at 4.

As a result, Mr. Sanchez was not prejudiced by the absence of a trial

objection based on constructive amendment of the indictment.

      C.    Appellate Counsel

      Mr. Sanchez also contends that his appellate counsel was ineffective

by failing to appear for oral argument, declining to file a reply brief, and

failing to appeal the denial of a motion to suppress. These contentions are

not reasonably debatable.




                                       5
      1.    Failure to Appear for Oral Argument

      It is true that Mr. Sanchez’s appellate attorney did not attend oral

argument. The attorney later explained that he had thought the case was no

longer set for oral argument. We assume, for the sake of argument, that

this failure to attend constituted a deficiency, satisfying the first of

Strickland’s two prongs. Even with this assumption, an ineffective-

assistance claim would fail because the attorney’s absence from oral

argument would not have been prejudicial.

      The assigned panel would have reset the case for oral argument if

any of the three judges thought that oral argument might have been helpful.

Fed. R. App. P. 34(a)(2). None did, so the panel decided the appeal on the

briefs. United States v. Sanchez, 431 F. App’x 664, 665 (10th Cir. 2011)

(unpublished) (“[T]his panel has determined unanimously that oral

argument would not materially assist in the determination of this appeal.”).

In light of that determination, there is little reason to expect a different

outcome if defense counsel had attended the oral argument when it was

initially scheduled.

      2.    Failure to File a Reply Brief

      Mr. Sanchez also argues that his appellate attorney should have filed

a reply brief. But Mr. Sanchez does not say what his attorney should have




                                       6
said in the reply brief. As a result, no reasonable jurist would regard the

absence of a reply brief as prejudicial. 2

      3.    Failure to Appeal the Denial of a Motion to Suppress

      In addition, Mr. Sanchez claims that his appellate counsel was

ineffective by failing to raise the district court’s denial of a motion to

suppress. The district court rejected this claim, reasoning that an appeal on

the suppression issue would have proved fruitless. This rationale is not

subject to legitimate debate.

      Mr. Sanchez filed a motion to suppress in district court. There, a

magistrate judge conducted a hearing and issued a report recommending

denial of the motion to suppress. The magistrate judge stated that all

objections were due within ten days of service. No one objected, and the

district judge adopted the recommendation. The absence of an objection to

the magistrate judge’s report would have proved fatal if counsel had

appealed the conviction based on denial of the motion to suppress. 3




2
      See United States v. Birtle, 792 F.2d 846, 849 (9th Cir. 1986)
(holding that defense counsel’s failure to appear at oral argument and file a
reply brief were not prejudicial given the defendant’s failure to show how
oral argument or a reply brief “would have resulted in a reasonable
probability of a different outcome”).
3
      In district court, Mr. Sanchez argued that trial counsel was
ineffective for failing to object to the magistrate judge’s report. But Mr.
Sanchez’s proposed appeal point has dropped trial counsel from the
ineffective-assistance claim.
                                       7
       Our circuit “has adopted a firm waiver rule under which a party who

fails to make a timely objection to the magistrate judge’s findings and

recommendations waives appellate review of both factual and legal

questions.” Morales-Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir.

2005). Two exceptions exist:

       1.   failure of the court to inform a pro se litigant of the
            consequences of a failure to object and

       2.   the interests of justice.

Id.

       These exceptions do not apply here. Mr. Sanchez was not appearing

pro se, and there is no apparent basis for our court to apply the interests-

of-justice exception. As a result, no reasonable jurist could have found

prejudice from the failure to appeal the ruling on the suppression issue.

III.   Cumulative Error and Existence of a Language Barrier with
       Counsel

       Mr. Sanchez also alleges cumulative error and difficulty in

understanding his attorney because of a language barrier. These arguments

lack merit. No reasonable jurist would have found two or more

constitutional errors or credited Mr. Sanchez’s complaint about a language

barrier.




                                        8
IV.   Disposition

      We decline to issue a certificate of appealability. As a result, we

dismiss the appeal.


                                    Entered for the Court



                                    Robert E. Bacharach
                                    Circuit Judge




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