United States v. Juan Romero-Trejo

476 F. App'x 790

5th Cir.

2012

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Docket

UNITED STATES of America, Plaintiff-Appellee v. Juan ROMERO-TREJO, Defendant-Appellant.

No. 11-20338

United States Court of Appeals, Fifth Circuit.

May 17, 2012.

475 Fed. Appx. 790

Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.

Summary Calendar.

ted)). In United States v. Bustillos-Pena, 612 F.3d 863 (5th Cir.2010), this court applied the rule of lenity in a case where the question was whether a defendant‘s prior conviction qualified him for a sentence enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A).⁸ The difficulty in Bustillos-Pena was that the defendant‘s probation for the prior conviction was revoked only after he had illegally reentered the country. Id. at 864. This court concluded that the provision was ambiguous, explaining that applying the enhancement would mean “that a guideline enhancement designed to reflect the nature of a defendant‘s illegal reentry offense could be triggered by unrelated conduct that occurred long after the reentry.” Id. at 867 (emphasis added); see also id. at 867-68 (noting that applying the enhancement where probation was revoked after illegal reentry would lead to disparate outcomes, depending on whether the defendant was first apprehended by immigration or state authorities).

The concerns implicated in Bustillos-Pena do not apply here, however, because Chavez‘s sentence was modified before, not after he was deported. Chavez was sentenced to confinement in the SAFPF in August 1997, and he was removed in March 1998. Thus, we are able to “make more than a guess” at what the Sentencing Commission intended, so the rule of lenity does not operate in Chavez‘s favor.

CONCLUSION

For the above reasons, we AFFIRM Chavez‘s sentence.

Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney‘s Office, Houston, TX, for Plaintiff-Appellee.

Kim Kathryn Ogg, Ogg Law Firm, Houston, TX, for Defendant-Appellant.

PER CURIAM:^*

Juan Romero-Trejo was convicted of one count of conspiracy to commit hostage taking and was given a within-guidelines sentence of 240 months in prison and a five-year term of supervised release. In this appeal, Romero-Trejo raises claims related to the district court‘s denial of the requests for substitute counsel and a continuance. These requests were raised in a pro se letter that he gave to the district court at sentencing, but this letter is not in the appellate record.

To the extent that Romero-Trejo argues that his right to a complete appellate record was infringed when the district court did not enter this letter into the record, this claim fails for several reasons. First, the line of cases on which he relies addresses missing portions of trial transcripts not letters never offered into evidence. See United States v. Margetis, 975 F.2d 1175, 1176 (5th Cir.1992); United States v. Selva, 559 F.2d 1303, 1305 (5th Cir.1977); see also 28 U.S.C. § 753. Second, the substance of the letter, and the requests made therein, may be ascertained from the record. Consequently, the omission of the letter does not deny Romero-Trejo “effective appellate review.” See Margetis, 975 F.2d at 1177; United States v. Neal, 27 F.3d 1035, 1043-44 (5th Cir. 1994). Finally, the letter was something Romero-Trejo had within his control; therefore, he is at least partially to blame for the failure to introduce it into evidence and the failure to move to supplement the appellate record to include a copy of it. This argument does not entitle Romero-Trejo to any relief.

Also unavailing are Romero-Trejo‘s challenge to the district court‘s denial of his request for substitute counsel and his contention that the district court failed to make sufficient inquiries concerning his arguments that new counsel was warranted. Our review of the record shows that the district court‘s inquiry into Romero-Trejo‘s alleged problem with counsel presents no meritorious claim because it was sufficient to ascertain the nature of the problem alleged and to glean the relevant facts. See United States v. Fields, 483 F.3d 313, 352 (5th Cir.2007). Additionally, Romero-Trejo has not shown “a conflict of interest, a complete breakdown in communication or an irreconcilable conflict which [led] to an apparently unjust verdict.” United States v. Young, 482 F.2d 993, 995 (5th Cir.1973). Consequently, he has not shown that the district court abused its discretion by failing to appoint substitute counsel. See United States v. Simpson, 645 F.3d 300, 307 (5th Cir.), cert. denied, — U.S. —, 132 S.Ct. 541, 181 L.Ed.2d 379 (2011). Finally, he has not shown that the district court abused its discretion by denying his motion for a continuance, which was tied to his request for a new attorney, because he has not shown that this denial prejudiced him. See United States v. Stalnaker, 571 F.3d 428, 439 (5th Cir.2009); United States v. Barnett, 197 F.3d 138, 144 (5th Cir.1999). The upward variance he feared never took place, and the district court sentenced him to a within-guidelines sentence.

AFFIRMED.

Notes

U.S.S.G. § 2L1.2(b)(1)(A) provides for a 16-level enhancement where the defendant was previously deported for “a drug trafficking offense for which the sentence imposed exceeded 13 months.”

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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