Argued December 10, 2014
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:95-cr-00486-CMH-4; 1:13-cv-00050-CMH).
Sejal Jhaveri, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Appellant.
Stephen Wiley Miller, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
Stephen L. Braga, Appellate Litigation Clinic, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Appellant.
Dana J. Boente, United States Attorney, Rebeca H. Bellows, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Before DUNCAN, AGEE, and HARRIS, Circuit Judges. Judge Agee wrote the opinion, in which Judge Duncan and Judge Harris joined.
AGEE, Circuit Judge
Abel Castillo Rangel was convicted in 2010 of three counts relating to marijuana trafficking and sentenced to 121 months of incarceration. He later filed a motion to vacate his conviction and sentence under 28 U.S.C. § 2255, alleging that his trial and appellate counsel had rendered constitutionally ineffective assistance. The district court denied his motion, and we granted a certificate of appealability identifying three issues: 1) whether Rangel's trial counsel was ineffective for not requesting an instruction that the jury find a drug weight based on the amount attributable to or reasonably foreseeable by Rangel; 2) whether his appellate counsel was ineffective for not raising the failure to request that instruction as an issue on direct appeal; and 3) whether his trial counsel was ineffective for failing to object to the drug weight and advisory guidelines range at sentencing. For the reasons explained below, we affirm the district court's judgment.
On November 28, 1995, a federal grand jury in Alexandria, Virginia indicted Rangel and five co-defendants for crimes related to marijuana trafficking. The indictment charged Rangel in four counts: Count 1 for conspiracy to distribute over 1,000 kg of marijuana from 1990 through 1995 (21 U.S.C. § 846); Count 4 for possession with intent to distribute marijuana
on September 30, 1992 (21 U.S.C. § 841(a)); Count 7 for distribution of marijuana on October 1, 1992 (21 U.S.C. § 841(a)); and Count 10, which was later dismissed, asserting forfeiture allegations.
Following his indictment, Rangel absconded to Texas, assumed an alias, and evaded arrest until March 23, 2010. He was subsequently tried by a jury and found guilty on the charges in the indictment on August 25, 2010.
A. Trial Evidence
The government presented six witnesses at trial: four law enforcement officers and two of Rangel's coconspirators. Fairfax County Detective Chester Toney testified that on September 30, 1992, he responded to a tip from a confidential informant about an upcoming marijuana transaction at a 7-Eleven. Detective Toney observed three men at that location, including an individual later identified as Michael Hillman, exit Rangel's pickup truck carrying a bag that appeared to contain marijuana. Police officers stopped and searched the three men and found 1.95 pounds (0.89 kg) of marijuana on Hillman. Rangel was not arrested at that time.
The next day, October 1, 1992, the informant told Detective Toney that a second marijuana transaction would take place that night at a McDonalds. At the McDonalds, Detective Toney saw Rangel's pickup truck and observed Rangel and another man exit the restaurant together. The men were then detained by police, and officers found Rangel with $1,369 in cash and the other man with $2,060 and 2 pounds (0.91 kg) of marijuana. Both men were arrested and charged.
Fairfax Police Department Lieutenant William Kitzerow testified about executing a search warrant for Rangel's residence on February 17, 1993, four and a half months after the McDonalds arrest. Officers found three bricks of marijuana on a shelf in a bedroom closet and three additional bags of marijuana in a black bag underneath some clothing. The combined marijuana weighed 5.25 pounds (2.39 kg).
Two of Rangel's alleged coconspirators, Michael Hillman and Ronnie Cadle, testified against him at trial about a broad marijuana trafficking operation. Hillman stated that he was involved with the trafficking operation from late 1990 through his September 30, 1992 arrest at the 7-Eleven. The group included approximately seven people, and Cadle and Hillman identified particular members of the operation by the names Lilo, Gringo, Leo, Flaco, and Rangel. Evidence seized from Rangel's apartment corroborated his association with some of these individuals: a phonebook found in the bedroom contained entries for " Laylo" and " Gringo," and his wallet contained a business card for Lalo Maltos. J.A. 341.
Hillman testified that he first became involved with the group in December 1990, when he was approached by Lilo, who offered to front him marijuana for resale. Subsequently, Hillman met Lilo " hundreds" of times, " [g]enerally, at his trailer in Chantilly," to buy single pounds of marijuana, which Lilo usually took from a stash of three to five pounds (1.36 to 2.27 kg). Id. at 113-14. In addition to Lilo, Hillman would see Gringo, Rangel, and others at the trailer. Specifically, Hillman testified that he " used to run into Abel [Rangel] at the trailer" and that " he sold me pot." Id. at 120. He testified that his September 30, 1992 arrest was the result of his attempt to buy one kilogram of marijuana from Rangel on behalf of his uncle, one of the other men present at the 7-Eleven.
According to Hillman, at some point, Lilo offered him $8,000 to drive to Mexico to pick up ...