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    United States v. Lopez, 10th Cir. (1997)

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    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding defendant Gabriel Lopez's appeal of his sentence for using or carrying a firearm during a drug trafficking offense. The court affirmed the district court's sentence, finding that: (1) Lopez was not entitled to credit for time spent on pre-sentence release under 18 U.S.C. § 3585; and (2) Lopez did not receive ineffective assistance of counsel at his detention hearing because he did not allege that he would have chosen detention over release had he been correctly informed.

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    United States v. Lopez, 10th Cir. (1997)

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    23 views4 pages
    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding defendant Gabriel Lopez's appeal of his sentence for using or carrying a firearm during a drug trafficking offense. The court affirmed the district court's sentence, finding that: (1) Lopez was not entitled to credit for time spent on pre-sentence release under 18 U.S.C. § 3585; and (2) Lopez did not receive ineffective assistance of counsel at his detention hearing because he did not allege that he would have chosen detention over release had he been correctly informed.

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    Filed: 1997-12-23 Precedential Status: Non-Precedential Docket: 96-2091

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    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding defendant Gabriel Lopez's appeal of his sentence for using or carrying a firearm during a drug trafficking offense. The court affirmed the district court's sentence, finding that: (1) Lopez was not entitled to credit for time spent on pre-sentence release under 18 U.S.C. § 3585; and (2) Lopez did not receive ineffective assistance of counsel at his detention hearing because he did not allege that he would have chosen detention over release had he been correctly informed.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    23 views4 pages

    United States v. Lopez, 10th Cir. (1997)

    Uploaded by

    Scribd Government Docs
    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding defendant Gabriel Lopez's appeal of his sentence for using or carrying a firearm during a drug trafficking offense. The court affirmed the district court's sentence, finding that: (1) Lopez was not entitled to credit for time spent on pre-sentence release under 18 U.S.C. § 3585; and (2) Lopez did not receive ineffective assistance of counsel at his detention hearing because he did not allege that he would have chosen detention over release had he been correctly informed.

    Copyright:

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    of 4

    F I L E D

    UNITED STATES COURT OF APPEALS


    FOR THE TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    DEC 23 1997

    PATRICK FISHER
    Clerk

    UNITED STATES OF AMERICA,


    Plaintiff-Appellee,
    No. 96-2091
    (D.C. No. CR-95-521-JC)
    (D. N.M.)

    v.
    GABRIEL LOPEZ,
    Defendant-Appellant.

    ORDER AND JUDGMENT *

    Before ANDERSON, McKAY, and LUCERO, Circuit Judges.

    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); 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.

    Defendant appeals from the sentence imposed after he pleaded guilty to one
    count of using or carrying a firearm during and in relation to a drug trafficking
    offense, in violation of 18 U.S.C. 924(c). We have jurisdiction under 18 U.S.C.
    3742(a)(1), and affirm.
    Defendant was arrested on September 8, 1995. On September 11, a
    detention and preliminary hearing was held, and defendant was released from
    custody under a number of conditions of release. On October 4, 1995, a grand
    jury returned a six-count indictment against defendant. He entered a plea of not
    guilty to the indictment, and was continued on release under the same conditions.
    On January 12, 1996, defendant pleaded guilty to the firearms charge in exchange
    for the other charges being dropped, and remained on release. On April 3, he was
    sentenced to sixty months imprisonment and five years supervised release. The
    district court did not give defendant credit for the time he spent on pre-sentence
    release.
    On appeal, defendant argues that: (1) the district court should have granted
    him credit under 18 U.S.C. 3585 for the time he spent on pre-sentence release
    because his attorney did not inform him that he would not get credit against his
    sentence for this time, and he did not knowingly and intelligently elect bail; and
    (2) he received ineffective assistance of counsel at the detention and preliminary

    -2-

    hearing because his attorney did not inform him that he would not get credit
    against his sentence for time spent on pre-sentence release.
    Defendant has not demonstrated his entitlement to credit under 18 U.S.C.
    3585 for time spent on pre-sentence release. First, he was not confined in a
    correctional facility designated by the Bureau [of Prisons] for the service of
    federal sentences while on release, and was therefore not under official
    detention within the meaning of 3585. See Reno v. Koray, 515 U.S. 50, 58
    (1995). Second, defendant has not shown that the district court had any discretion
    under the statute to grant him credit for time spent on pre-sentence release due to
    any alleged failing by his counsel. Third, contrary to defendants assertions, the
    Supreme Court has not established a requirement that a defendant must knowingly
    and intelligently elect bail; Justice Ginsberg stated expressly in her concurring
    opinion in Reno that the Courts decision left the question of such a requirement
    open. See id. at 65 (Ginsberg, J., concurring). Finally, defendant does not even
    allege that he would have chosen official detention over release, had he known
    that he would get no credit for time spent on release. See R., Suppl Vol. I,
    doc. 46 (defendants affidavit).
    For that last reason, defendant has also failed to show that his attorney was
    ineffective for allegedly failing to advise him that he would receive no credit for
    time spent on pre-sentence release. While we generally do not address claims of
    -3-

    ineffective assistance of counsel on direct appeal, we do so in this case because


    the claim does not merit further factual inquiry. United States v. Gordon,
    4 F.3d 1567, 1570 (10th Cir. 1993). Defendant must show that his counsels
    performance fell below an objective standard of reasonableness, and that the
    deficient performance resulted in prejudice. Id. (quoting and citing Strickland v.
    Washington, 466 U.S. 668, 688, 691 (1984)). Although defendant asserted in his
    affidavit that his attorney failed to inform him at the detention and preliminary
    hearing that he would not receive credit for time spent on pre-sentence release,
    see R., Suppl Vol. I, doc. 46, 2, his allegations are insufficient as to prejudice.
    Defendant does not assert that he would have chosen not to be released had he
    been correctly informed, see id., doc. 46, and, therefore, his claim of ineffective
    assistance of counsel must fail. Cf. Hill v. Lockhart, 474 U.S. 52, 60 (1985)
    (holding defendant had shown no prejudice from allegedly misinformed guilty
    plea, where he did not assert that he would have insisted on going to trial had he
    been correctly informed).
    The judgment of the United States District Court for the District of New
    Mexico is AFFIRMED.
    Entered for the Court
    Stephen H. Anderson
    Circuit Judge

    -4-

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