In re: Graham

See case details

In re Leo D. GRAHAM, Movant

No. 13-3082

United States Court of Appeals, Tenth Circuit

April 23, 2013

1181

In particular, we review whether the district court committed a significant procedural error. A district court commits “significant procedural error” by “failing to consider the § 3553(a) factors” or by “failing to adequately explain the chosen sentence.”

Gall, 552 U.S. at 51, 128 S.Ct. 586.

There is no dispute here as to the proper Guidelines calculation. Nor is there a dispute that Sandoval-Orellana was given the opportunity to argue for a reduced sentence. But Sandoval-Orellana argues that the sentence imposed was more severe than necessary to meet the goals of 18 U.S.C. § 3553(a) and complains that the district court failed to adequately address his argument for imposition of a below-Guideline thirty-six month sentence.

It is well established that “when a judge decides simply to apply the Guidelines to a particular case, doing so will not necessarily require lengthy explanation.”

Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). When a party raises a specific, non-frivolous argument that is relevant to sentencing, “the judge should normally explain why he accepts or rejects the party‘s position.”

Carty, 520 F.3d at 992-93. However, the district court‘s failure to do so is not procedural error where “adequate explanation” may “be inferred from the PSR or the record as a whole.”

Id. at 992. A thorough explanation is not necessary where the defendant‘s argument for a lower sentence is straightforward and uncomplicated.

United States v. Overton, 573 F.3d 679, 699-700 (9th Cir.2009).

If the record “makes clear that the sentencing judge listened to each argument” and “considered the supporting evidence,” the district court‘s statement of reasons for the sentence, although brief, will be “legally sufficient.”

Rita, 551 U.S. at 358, 127 S.Ct. 2456. Here, the district court announced a tentative sentence of sixty-three months. But after hearing from defense counsel and Sandoval-Orellana, and after considering all the § 3553(a) factors, the district court imposed a sentence at the low end of the advisory range, and six months lower than its previously-announced tentative sentence. The district court specifically noted that it saw nothing that would warrant a variance below the Guideline range. The record as a whole shows that the district court considered Sandoval-Orellana‘s claims about his rehabilitation. There is no plain error.

CONCLUSION

Sandoval-Orellana‘s prior conviction for unlawful sexual penetration in violation of California Penal Code § 289(a)(1), for which he was sentenced to more than one year in custody, constituted an aggravated felony under 18 U.S.C. § 16(b) and 8 U.S.C. § 1101(a)(43)(F). Accordingly, he was ineligible for discretionary relief as an aggravated felon and the district court appropriately denied his motion to dismiss. The fifty-seven month sentence was reasonable.

AFFIRMED.

Before HARTZ, O‘BRIEN, and HOLMES, Circuit Judges.

ORDER

PER CURIAM.

In 2000, Leo D. Graham pleaded guilty to one count of armed bank robbery. He did not appeal, but later he unsuccessfully sought relief under 28 U.S.C. § 2255. See

United States v. Graham, 312 Fed.Appx. 79 (10th Cir.2008). He now moves for authorization to file a second or successive § 2255 motion based on

Missouri v. Frye, — U.S. —, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), and

Lafler v. Cooper, — U.S. —, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). We deny authorization.

Congress has placed strict limitations on second or successive § 2255 motions, requiring that a movant obtain this court‘s authorization before filing in district court. See 28 U.S.C. § 2255(h). To obtain authorization based on

Frye and

Lafler, Mr. Graham must show that these decisions establish “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” Id. § 2255(h)(2). To date, however, every circuit court to consider the question has held that

Frye and

Lafler do not establish a new rule of constitutional law. See

Gallagher v. United States, 711 F.3d 315, 315-16 (2d Cir.2013) (per curiam);

Williams v. United States, 705 F.3d 293, 294 (8th Cir.2013) (per curiam);

Buenrostro v. United States, 697 F.3d 1137, 1140 (9th Cir.2012);

In re King, 697 F.3d 1189, 1189 (5th Cir.2012) (per curiam);

Hare v. United States, 688 F.3d 878, 879, 881 (7th Cir.2012);

In re Perez, 682 F.3d 930, 932-34 (11th Cir.2012) (per curiam). We substantially agree with the reasoning of those decisions. We did not hold to the contrary in

United States v. Moya, 676 F.3d 1211, 1214 (10th Cir.2012).

Both

Frye and

Lafler concern the Sixth Amendment right to the effective assistance of counsel in the plea bargaining process.

Frye held that counsel‘s failure to inform his client of a plea offer may constitute ineffective assistance of counsel.

132 S.Ct. at 1408, 1410-11.

Lafler held that an attorney who rendered constitutionally deficient advice to reject a plea bargain was ineffective where his advice caused his client to reject the plea and go to trial, only to receive a much harsher sentence.

132 S.Ct. at 1383, 1390-91. In each case, the Court reached its decision by applying the well-established principles regarding the assistance of counsel that were initially set forth in

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See

Frye, 132 S.Ct. at 1409-11;

Lafler, 132 S.Ct. at 1384, 1390-91.

“[T]he Supreme Court‘s language in Lafler and Frye confirm that the cases are merely an application of the Sixth Amendment right to counsel, as defined in Strickland, to a specific factual context.”

Perez, 682 F.3d at 932; see also

Hare, 688 F.3d at 879 (“The Frye Court merely applied the Sixth Amendment right to effective assistance of counsel according to the test first articulated in Strickland ...“). Accordingly, “Lafler and Frye are not new rules because they were dictated by Strickland.”

Perez, 682 F.3d at 933; see also

Buenrostro, 697 F.3d at 1140 (“Because the Court in Frye and Lafler repeatedly noted its application of an established rule to the underlying facts, these cases did not break new ground or impose a new obligation on the State or Federal Government.“).

Moreover, “any doubt as to whether Frye and Lafler announced new rules is eliminated because the Court decided these cases in the post conviction context.”

Perez, 682 F.3d at 933; see also

Hare, 688 F.3d at 879.

Lafler recognized that for a federal court to grant habeas relief, the state court‘s decision must be contrary to or an unreasonable application of clearly established federal law, and it held that the state court‘s failure to apply

Strickland was contrary to clearly established federal law. See

Lafler, 132 S.Ct. at 1390; see also

Williams v. Jones, 571 F.3d 1086, 1090-91 (10th Cir.2009) (recognizing

Strickland as clearly established federal law with regard to a habeas claim that counsel was constitutionally deficient when he persuaded the applicant to reject a plea bargain). But where the law is clearly established, then the rule “must, by definition, have been an old rule,” not a new one.

Perez, 682 F.3d at 933; see also

Hare, 688 F.3d at 879.

Frye and

Lafler do not satisfy § 2255(h)(2) because they do not establish a new rule of constitutional law. Mr. Graham‘s motion for authorization therefore is denied. This denial of authorization “shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.” 28 U.S.C. § 2244(b)(3)(E).

Case Details

Case Name: In re: Graham

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Apr 23, 2013

Citation: 714 F.3d 1181

Docket Number: 13-3082

Court Abbreviation: 10th Cir.