United States v. Ibrahim Baez-Acuna, 125 F.3d 863, 10th Cir. (1997)
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Scribd Government DocsUnited States v. Ibrahim Baez-Acuna, 125 F.3d 863, 10th Cir. (1997)
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Scribd Government Docs125 F.
3d 863
97 CJ C.A.R. 2160
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
Ibrahim BAEZ-ACUNA, Defendant-Appellant.
No. 97-6131.
United States Court of Appeals, Tenth Circuit.
Oct. 2, 1997.
Before BRORBY, EBEL and KELLY, Circuit Judges.
ORDER AND JUDGMENT*
EBEL, Circuit Judge.
Ibrahim Baez-Acuna ("Baez-Acuna") pleaded guilty to possession with intent to
distribute and distribution of cocaine, 21 U.S.C. 846, and was sentenced to
151 months' imprisonment. (D. Ct. order at 1.) His conviction and sentence
were affirmed. United States v. Baez-Acuna, 54 F.3d 634 (10th Cir.1995). In
this motion to vacate, set aside, or correct his sentence under 28 U.S.C. 2255,
he argues that he should be resentenced because his counsel was ineffective and
because the district court improperly relied on hearsay to calculate the quantity
of drugs attributable to him. The district court summarily dismissed the 2255
motion and Baez-Acuna appeals. Having concluded that Baez-Acuna has not
made a substantial showing of the denial of a constitutional right, see 28 U.S.C.
2253(c), we deny a certificate of appealability and dismiss the appeal.1
Baez-Acuna's claims stem from the conduct of two witnesses against him.
Before sentencing, David Alvarez ("Alvarez") had informed officers that Baez-
Acuna was responsible for 8,000 grams of cocaine (Aplnt's Br. at 2) and
Deborah Guerrero ("Guerrero") had attributed 4,252.50 grams of cocaine to
Baez-Acuna (Aplnt's Br. at 2). Those amounts were listed in the presentence
report. (Aplnt's Br. at 2; D. Ct. order at 3.) At sentencing, Alvarez and Guerrero
abjured their previous statements regarding the quantity of drugs for which
Baez-Acuna was responsible. Alvarez said that his previous statement was
untrue but refused to testify further. (Aplnt's Br. at 2; D. Ct. order at 3.)
Guerrero testified but her estimate was lower than in her prior statement.
(Aplnt's Br. at 2.) The district court allowed the officer to whom Alvarez had
made his previous statements to testify about those statements (D. Ct. order at
3), and ultimately it incorporated both the 8,000 gram and 4,252.50 gram
estimates into the total quantity of drugs attributable to Baez-Acuna. (Aplnt's
Br. at 2.) Baez-Acuna now argues that his counsel was ineffective for failing to
challenge these quantities or to cross-examine the witnesses competently
(Aplnt's Br. at 4-5) and that the district court erred in basing its findings on the
unsworn, unreliable testimony of drug addicts. (Aplnt's Br. at 7.)
3
A defendant has a due process right not to be sentenced on materially incorrect
information. United States v. Browning, 61 F.3d 752, 755 (10th Cir.1995).
During sentencing, however, a district court may rely upon hearsay, "provided
that the information has sufficient indicia of reliability to support its probable
accuracy." U.S.S.G. 6A1.3(a). The hearsay relied upon in this case bore such
sufficient indicia of reliability, as the officer to whom the statements were made
was able to evaluate the speakers' demeanor and was available at sentencing for
cross-examination regarding those statements. See United States v. Farnsworth,
92 F.3d 1001, 1010 (10th Cir.), cert. denied, 117 S.Ct. 596 (1996). Further, the
testimony of a drug addict is not automatically unreliable. See, e.g., Browning,
61 F.3d at 754 (affirming district court's decision that formerly drug addicted
witnesses were credible). It is within the district court's province to make
witness credibility determinations, see id., and Baez-Acuna has given us no
reason to second-guess the district court's decision here. We find no denial of
Baez-Acuna's right to due process at sentencing.
Because the district court was entitled to rely on the hearsay testimony, BaezAcuna can show neither that counsel acted unreasonably in failing to challenge
the district court's actions at sentencing or on appeal, nor that Baez-Acuna was
prejudiced by counsel's failure to do so. Consequently, he has not suffered
constitutionally ineffective assistance of counsel. See Strickland v. Washington,
466 U.S. 668, 687, 694 (1984).
We find no substantial showing that Baez-Acuna was deprived of his Sixth
Amendment right to counsel or his Fifth Amendment right to due process at
sentencing. Thus, the certificate of appealability is DENIED, and the appeal is
DISMISSED.
6
The mandate shall issue forthwith.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties' request for a decision on the briefs without
oral argument. See Fed. R.App. P. 34(f) and 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res
judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3
As a result of the Antiterrorism and Effective Death Penalty Act of 1996,
Pub.L. No. 104-132 (1996), after April 24, 1996, a prisoner seeking relief under
28 U.S.C. 2255 must obtain a certificate of appealability in order to appeal
the district court's denial of the 2255 motion. See 28 U.S.C. 2253(c)
