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    United States v. Romero, 10th Cir. (2004)

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    Joe Renaldo Romero pled guilty to one count of possession with intent to distribute over 500 grams of methamphetamine. He was sentenced to the statutory minimum of 120 months in prison. On appeal, Romero argued that the government entrapped him by waiting to arrest him until he distributed a larger amount of drugs, manipulating his sentence. The court affirmed his sentence, finding no evidence the government acted improperly or engaged in outrageous conduct during its investigation. The court also declined to consider Romero's new claims of ineffective assistance of counsel raised for the first time on appeal, noting such claims are generally only addressed in collateral proceedings.

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    United States v. Romero, 10th Cir. (2004)

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    Joe Renaldo Romero pled guilty to one count of possession with intent to distribute over 500 grams of methamphetamine. He was sentenced to the statutory minimum of 120 months in prison. On appeal, Romero argued that the government entrapped him by waiting to arrest him until he distributed a larger amount of drugs, manipulating his sentence. The court affirmed his sentence, finding no evidence the government acted improperly or engaged in outrageous conduct during its investigation. The court also declined to consider Romero's new claims of ineffective assistance of counsel raised for the first time on appeal, noting such claims are generally only addressed in collateral proceedings.

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    Filed: 2004-01-08 Precedential Status: Non-Precedential Docket: 02-2161

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    Joe Renaldo Romero pled guilty to one count of possession with intent to distribute over 500 grams of methamphetamine. He was sentenced to the statutory minimum of 120 months in prison. On appeal, Romero argued that the government entrapped him by waiting to arrest him until he distributed a larger amount of drugs, manipulating his sentence. The court affirmed his sentence, finding no evidence the government acted improperly or engaged in outrageous conduct during its investigation. The court also declined to consider Romero's new claims of ineffective assistance of counsel raised for the first time on appeal, noting such claims are generally only addressed in collateral proceedings.

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    80 views6 pages

    United States v. Romero, 10th Cir. (2004)

    Uploaded by

    Scribd Government Docs
    Joe Renaldo Romero pled guilty to one count of possession with intent to distribute over 500 grams of methamphetamine. He was sentenced to the statutory minimum of 120 months in prison. On appeal, Romero argued that the government entrapped him by waiting to arrest him until he distributed a larger amount of drugs, manipulating his sentence. The court affirmed his sentence, finding no evidence the government acted improperly or engaged in outrageous conduct during its investigation. The court also declined to consider Romero's new claims of ineffective assistance of counsel raised for the first time on appeal, noting such claims are generally only addressed in collateral proceedings.

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    of 6

    F I L E D

    UNITED STATES COURT OF APPEALS


    TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    JAN 8 2004

    PATRICK FISHER
    Clerk

    UNITED STATES OF AMERICA,


    Plaintiff-Appellee,
    v.
    JOE RENALDO ROMERO,

    No. 02-2161
    (D. New Mexico)
    (D.Ct. No. CR-00-1235-JP)

    Defendant-Appellant.
    ORDER AND JUDGMENT *
    Before SEYMOUR, MURPHY, and OBRIEN, Circuit Judges.

    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument.
    On October 10, 2001, Joe Renaldo Romero was indicted on five counts for
    various crimes relating to the possession and distribution of methamphetamine.
    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.
    *

    Pursuant to a plea agreement, Romero pled guilty to one count of possession with
    the intent to distribute more than 500 grams of a substance containing
    methamphetamine in violation of 21 U.S.C. 841(a)(1) and (b)(1)(A). In
    exchange, the Government agreed, inter alia, to dismiss the remaining counts in
    the indictment. The district court sentenced Romero to the statutory minimum of
    120 months imprisonment followed by five years of supervised release. In his pro
    se appeal, Romero contends for the first time that the Government manipulated
    his sentence through entrapment. He also claims ineffective assistance of trial
    counsel because his appointed attorney failed to raise this issue to the district
    court. Further, in his reply brief, he alleges two new claims: failure to apply the
    safety valve provision, 1 and ineffective assistance of appellate counsel due to
    abandonment. We affirm the sentence of the district court and decline to
    consider the ineffective assistance of counsel claims.

    In his reply brief, Romero attempts for the first time to challenge the
    district courts determination that he did not qualify for the safety valve exception
    to the application of the statutory minimum at sentencing. He claims his appellate
    counsel abandoned him and that is why the issue was not raised earlier. (Reply
    Br. at 14.) We do not consider, even under a plain error standard, issues raised
    for the first time in a reply brief. See United States v. Murray, 82 F.3d 361, 363
    n.3 (10th Cir. 1996); United States v. Hardwell, 80 F.3d 1471, 1495 (10th Cir.
    1996). Even were we to do so, the transcript of the sentencing hearing contains
    sufficient facts to support the district courts conclusions. In addition, this is an
    ineffective assistance of appellate counsel claim which should be pursued in a
    different manner. See infra, Galloway, 56 F.3d at 1240.
    1

    -2-

    In June 2000, Romero twice sold methamphetamine to a confidential


    informant. The first sale involved approximately five ounces of the substance,
    the second approximately three ounces. In August 2000, the confidential
    informant arranged with Romero to buy two kilograms of methamphetamine; the
    first kilogram to be delivered without payment, the second kilogram to be
    delivered the next day after payment for the entire transaction. The first part of
    the sale was completed. The next day, drug enforcement agents arrested Romero
    with possession of the second kilogram prior to the completion of the sale. The
    second half of the transaction is the charge to which Romero pled guilty.
    Romero claims the agents had probable cause to arrest him after the first
    sale in June, and the failure to do so until after he delivered the two kilograms
    ordered by the Government in August was a deliberate manipulation to increase
    the amount of contraband, which in turn, would extend the length of his sentence.
    Romero concedes he was involved in the possession and distribution of
    methamphetamine, but maintains that he was not predisposed to distribute large
    amounts such as the two kilograms involved in the August sale. While the inquiry
    in determining entrapment revolves around a defendants predisposition to
    commit a crime, 2 the issue here is considered in the context of the Governments
    Romero denies he is asserting a defense of entrapment, but merely wants
    his sentence to be reconsidered in light of the Governments conduct. To the
    extent he might have claimed entrapment, he has waived this affirmative defense
    2

    -3-

    conduct. United States v. Scull, 321 F.3d 1270, 1276 n.3 (10th Cir.) ("Other
    courts have addressed this issue under the rubric sentencing entrapment or
    sentencing factor manipulation. This court addresses the same concept under
    the appellation of outrageous governmental conduct.") (citations omitted), cert.
    denied, 124 S. Ct. 175 (2003). The parameters of this concept are described in
    Scull:
    In United States v. Russell, 411 U.S. 423, 93 S. Ct. 1637, 36 L.Ed.2d
    366 (1973), the Supreme Court acknowledged that the conduct of law
    enforcement agents in the course of investigating an offense might be
    so outrageous that due process principles would absolutely bar the
    government from invoking judicial processes to obtain a conviction.
    Id. at 431-32, 93 S. Ct. 1637. In determining whether the
    government has committed outrageous conduct, the relevant inquiry
    is whether, considering the totality of the circumstances in any given
    case, the government's conduct is so shocking, outrageous and
    intolerable that it offends the universal sense of justice. United
    States v. Lacey, 86 F.3d 956, 964 (10th Cir. 1996) (quotations
    omitted). [T]his is an extraordinary defense reserved for only the
    most egregious circumstances. United States v. Mosley, 965 F.2d
    906, 910 (10th Cir. 1992).
    Id. at 1277.
    Moreover, when a party fails to raise an issue in the district court, we
    review for plain error. United States v. Easter, 981 F.2d 1549, 1555 (10th Cir.
    by pleading guilty. United States v. Riles, 928 F.2d 339, 342 (10th Cir. 1991)
    (Once a defendant has plead guilty, there will not be a further trial of any kind,
    so that by pleading guilty . . . the defendant waives the right to a trial. By
    waiving the right to trial, a defendant waives non-jurisdictional defenses,
    including entrapment . . . . He likewise admits that he was predisposed to commit
    the offense, since predisposition is the crux of the entrapment defense.)
    (internal citations omitted).
    -4-

    1992) (citation omitted), cert. denied, 508 U.S. 953 (1993). Plain error review,
    however, is not appropriate when the alleged error involves the resolution of
    factual disputes. Id. at 1556. In such a case, we deem the issue waived. Id.
    Romeros contention that the Government's continued investigation was purely for
    the purpose of increasing his sentence is a fact-intensive inquiry into the
    Governments motives. Accordingly, plain error review is inappropriate and
    Romeros claim is waived. Even were we to address this claim, we find no merit
    to his contention. In the limited record provided on appeal, there is no indication
    the Government stepped outside the bounds of a legitimate criminal investigation.
    Finally, Romero claims he received ineffective assistance of trial counsel,
    but concedes in his reply brief that the factual record is insufficient to determine
    the issue. In addition, in his reply brief, he claims his counsel abandoned him
    on appeal. Except in rare cases, a defendant must raise ineffective assistance of
    counsel claims in a collateral proceeding, not on direct appeal. See United States
    v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc) (Ineffective
    assistance of counsel claims . . . brought on direct appeal are presumptively
    dismissible, and virtually all will be dismissed.). We follow this practice even
    when the record below is sufficiently developed for us to pass judgment. Id.
    This rule allows the district court to provide an opinion in the fist instance, which
    is a valuable aid to appellate review. Id. Accordingly, we decline to address
    -5-

    Romeros ineffective assistance of counsel claim on direct appeal.


    For the reasons above, we AFFIRM Romeros sentence.

    Entered by the Court:


    TERRENCE L. OBRIEN
    United States Circuit Judge

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