United States of America v. Alvin Felicianosoto
No. 18-2493
United States Court of Appeals For the Eighth Circuit
August 15, 2019
Submitted: June 13, 2019
Appeal from United States District Court for the District of South Dakota - Sioux Falls
Before COLLOTON, KELLY, and ERICKSON, Circuit Judges.
A jury found Alvin Felicianosoto guilty of conspiracy to distribute methamphetamine, in violation of
I
The evidence presented at trial revealed the following. In July 2016, Alex Ventura was arrested by Sioux Falls police officers and became a cooperating witness. Ventura
Victoria Parrow testified that she met Felicianosoto through Ventura in 2015 and had regularly purchased methamphetamine from him. After purchasing smaller amounts for several weeks, she began purchasing half-pound quantities. She estimated that she purchased a half pound every other week for six or seven months, and then sold it to others. She primarily communicated with Felicianosoto via text message. Several of those messages were read aloud at trial, and she explained that they were setting up sales of methamphetamine.
Two other witnesses—Blanca Luna-Soto and Edras Chua-Lemus—testified that they had supplied methamphetamine to Felicianosoto. Luna-Soto testified that, in late 2015 or early 2016, her husband, Chua-Lemus, sold Felicianosoto methamphetamine in exchange for a car title. Chua-Lemus similarly testified that he met Felicianosoto in 2015 and sold him methamphetamine on two occasions (first a half pound and then later one pound).
The police interviewed Felicianosoto on December 20, 2016, and Officer Hector Soto testified about the contents of that interview. Felicianosoto reportedly told officers that the methamphetamine found on his person when he was arrested on July 20 had belonged to Ventura and that Felicianosoto was merely holding it for him. He also claimed that the methamphetamine discovered at his house on July 21 belonged to Ventura. He reportedly told officers that he sometimes distributed methamphetamine to others on Ventura‘s instructions.
Felicianosoto testified at trial. He stated that he primarily stored Ventura‘s methamphetamine for him and provided him amounts when he needed it. He admitted to holding Ventura‘s methamphetamine on July 20, when he was arrested with approximately four ounces of methamphetamine on his person. He testified that he never sold methamphetamine to Parrow, but sometimes accompanied Ventura when Ventura sold to Parrow. Ventura would sometimes tell Parrow that the methamphetamine was Felicianosoto‘s to ensure that she would pay. Felicianosoto denied ever obtaining methamphetamine from Chua-Lemus or Luna-Soto and denied knowing about the methamphetamine discovered in his garage.
Throughout the trial, Felicianosoto‘s counsel conceded his client‘s guilt as to the possession with intent to distribute charge but asked for a verdict of not guilty on the conspiracy charge. In his opening statement, counsel acknowledged that “Alvin did have methamphetamine in his possession, as it is alleged in Count 2, in July of 2016.” At closing, he stated, “We know that Alvin got caught with four ounces. He got called and he showed up, and he‘s never denied that.” Later, his counsel said: “Yes, he distributed it, or attempted to, and for that I‘m not asking you to acquit him. The government is right. In that Verdict Form there was more than 50 grams in his possession with intent to distribute. That is guilty.” He went on to attack the evidence supporting the conspiracy charge, as well as the credibility of the government‘s witnesses.
The jury convicted Felicianosoto on both counts. On the conspiracy count, the jury found that Felicianosoto was responsible
Prior to sentencing, Felicianosoto objected to the recommendation that he receive a two-level enhancement for obstruction of justice under
II
On appeal, Felicianosoto raises four claims. He argues that his trial counsel‘s concession of guilt amounted to a structural error meriting reversal under McCoy v. Louisiana, 138 S. Ct. 1500 (2018). He also argues that the district court erred in applying the obstruction-of-justice enhancement and in failing to consider the sentencing factors contained in
A
The Sixth Amendment entitles the accused “to have the Assistance of Counsel for his defence.”
The Supreme Court‘s treatment of the McCoy error contrasts with its treatment of a similar issue in Florida v. Nixon, 543 U.S. 175 (2004). In Nixon, the Court held that a lawyer‘s concession of guilt without the defendant‘s “express consent” does not automatically constitute ineffective assistance of counsel. See 543 U.S. at 178. “[W]hen a defendant, informed by counsel, neither consents nor objects to the course counsel describes as the most promising means to avert a sentence of
Felicianosoto asserts that McCoy entitles him to a new trial because he expressed his opposition to his attorney‘s assertion of guilt by pleading not guilty to both counts and taking his case to trial. But Felicianosoto admitted on the stand to holding nearly four ounces of methamphetamine for Ventura, who would later distribute it to others. This was consistent with his attorney‘s statements to the jury that he was guilty of the possession with intent to distribute count. The record does not reflect that Felicianosoto made any “express statements of [his] will to maintain innocence” in response to his attorney‘s concessions, either to his counsel or the court. Id. As a result, Felicianosoto has not demonstrated at this juncture that his counsel‘s concession of guilt violated his autonomy to decide the objective of his defense. We recognize there may be facts not in the present record that might demonstrate such a violation. Felicianosoto remains free to renew his Sixth Amendment claim in a motion under
At oral argument, Felicianosoto‘s counsel urged us to fully resolve his McCoy claim on direct review—if necessary, by remanding to the district court for an evidentiary hearing—because a habeas petition would shift the burden to Felicianosoto to prove prejudice. Felicianosoto cites no authority supporting his remand proposal, and has directed us only to Yannai v. United States, 346 F. Supp. 3d 336 (E.D.N.Y. 2018), in support of his contention that he would bear the burden to prove prejudice on a
B
Turning to Felicianosoto‘s sentencing arguments, we find no basis for reversal.
We review the applicability of the obstruction-of-justice enhancement in
Felicianosoto argues that the district court committed procedural error by failing to consider the sentencing factors in
Felicianosoto has not demonstrated that the district court committed plain error. “‘We do not require district courts to mechanically recite the § 3553(a) factors’ when it is clear the factors were properly considered.” United States v. Brown, 627 F.3d 1068, 1073 (8th Cir. 2010) (quoting United States v. Lazarski, 560 F.3d 731, 733 (8th Cir. 2009)). Here, the district court identified several factors that led it to apply a sentence at the top of the Guidelines range, including Felicianosoto‘s perjurious statements and his refusal to accept responsibility for his offenses. These are permissible factors for the court to consider when imposing a sentence. See
Finally, Felicianosoto argues that his sentence is substantively unreasonable, an issue we review for an abuse of discretion. Merrell, 842 F.3d at 584. “A sentencing court abuses its discretion if it fails to consider a relevant factor that should have received significant weight, gives significant weight to an improper or irrelevant factor, or considers only the appropriate factors but commits a clear error of judgment in weighing those factors.” United States v. Williams, 913 F.3d 1115, 1116 (8th Cir. 2019) (per curiam) (quoting United States v. Johnson, 812 F.3d 714, 715 (8th Cir. 2016) (per curiam)). A within-Guidelines sentence is afforded a presumption of reasonableness. Id.
Felicianosoto argues that the district court abused its discretion by placing undue weight on his statements at the sentencing hearing, during which he reasserted some of the falsehoods made during his trial testimony and accused his attorney of conspiring with the government. Felicianosoto provides no support for the proposition that these statements were improper or irrelevant factors to consider at sentencing. Accordingly, Felicianosoto has not rebutted the presumption that his within-Guidelines sentence was reasonable.
III
For the reasons discussed above, we affirm Felicianosoto‘s convictions and sentence.