* After an examination of the briefs and the record, we have concluded that oral

argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.

See Fed. R. App. P. 34(a)(2). 

# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted June 23, 2005 *

Decided July 19, 2005

Before

Hon. ILANA DIAMOND ROVNER, Circuit Judge

Hon. DIANE P. WOOD, Circuit Judge

Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 04-3109

FELIPE RANGEL,

Petitioner-Appellant

,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee

. Appeal from the United States District

Court for the Northern District

of Indiana, South Bend Division.

No. 3:04 CV 0138 AS

Allen Sharp, Judge

.

O R D E R

Felipe Rangel and

his cousin, Jose Garcia, were indicted on six counts of

distributing cocaine in violation of 21 U.S.C. § 841(a)(1). Garcia pleaded guilty and

agreed to cooperate with the government. At Rangel’s trial, Garcia testified that

Rangel provided the cocaine that Garcia had delivered to undercover agents on the six

occasions alleged in the indictment. The jury returned a finding of guilt on two of the

six counts, which happened to be the only two deals during which Rangel was actually

present. The court then sentenced him to 63 months’ imprisonment on each count, to

run concurrently. Despite Rangel’s acquittal on the four remaining counts, the court UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53No. 99-4292 Page 2

included the drug quantities associated wi th them as relevant conduct in the

calculation of his guideline range. As a result, his total sentence was the same as if he

had been c

onvicted as charged. See U.S.S.G. § 1B1.3. Rangel appealed, and we

affirmed in all respects. See United States v. Rangel, 350 F.3d 648 (7th Cir. 2003).

Rangel returned to the district court with a motion for collateral relief under 28

U.S.C. § 2255. The district court deni ed the motion in an order that principally

discussed the effectiveness of defense counsel in the sentencing process. The court then

granted a certificate of appealability in which it identified five issues: (1) whether the

sentencing court violated Fed. R. Crim. P. 32(i) by neglecting to ask Rangel whether

he had read the presentence report (PSR), (2) whether this alleged violation of the

rules violated Rangel’s due process rights, insofar as it prevented him from objecting

to the guidelines computations in the PSR, (3) whether appellate counsel was

ineffective for failing to argue that Rule 32(i) was violated, (4) whether trial counsel

rendered ineffective assistance by failing to object durin g closing argument to the

prosecutor’s statements that Garcia was a truthful witness and that Rangel “smoked

cocaine,” and (5) whether appellate counsel rendered ineffective assistance by failing

to argue on appeal that the prosecutor altered cer tain stipulated trial exhibits and

then tried to slip them to the jury.

Before discussing any of these points, there is a preliminary issue that we must

highl ight, namely, the standard for granting certificates of appealability. The

governing statute states that “[a] certificate of appealability may issue

. . . only if the

applicant has made a substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). Before the statute was amended in 1996, the vehicle for an appeal

was a certificate of probable cause, which issued upon a “substantial showing of the

denial of a federal right.” See Barefoot v. Estelle, 463 U.S. 880, 893 (1983) (emphasis

added). There is a significant difference between the denial of a federal right, which

might be a statutory right, and the denial of a constitutional r ight. Had the district

court applied the correct standard, it would not have certified the first of the five

issues, which concerns only a violation of the criminal rules. We therefore vacate the

certificate of appealability insofar as it includes only the rule violation, and move on

to the remaining four points, which do raise constitutional issues.

The second and third issues recast the alleged violation of Rule 32(i) as a due

process claim and an ineffectiveness of trial counsel claim, but the arguments look no

bett er as rearranged. Rangel argues that the sentencing court’s failure to ask him

directly whether he had read the PSR, had discussed it with his lawyer, and wished

to challenge it, prevented him from asking for a “minimal or minor participant”

reduction and a “safety valve” reduction under the Sentencing Guidelines. See

U.S.S.G. §§ 3B1.2, 5C1.2, 2D1.1(b)(7). In fact, however, trial counsel asked the courtNo. 99-4292 Page 3

for the mitigating role adjustment, and it was clear that Rangel was not entitled to the

safety valve because he did not reveal his sources to the government. Under the

circumstances, it is plain that his due p rocess rights were not violated. It is equally

clear that he was not prejudiced by anything his counsel did or did not do, especially

in light of the undisputed fact that counsel reviewe d the contents of the PSR with

Rangel by telephone before the sentencing.

Rangel next argues that his trial counsel rendered ineffective assistance when

he failed to object to certain parts of the prosecutor’s closing argument. The prosecutor

acknowledged that drug dealers are not model citizens, but he went on to say:

But that does not mean that when Tony Garcia stood up there and said

my source of supply was the defendant, my cousin, Felipe Rangel, that he was not telling the truth.

In fact, ladies and gentlemen, he was telling you the truth. He was his

source of supply in all of these deals, just like he said he was.

Well, how do you know that Tony Garcia was telling the truth?

Well, we had introduced evidence on the transcripts showing Tony Garcia

refers time and again in those transcripts to his cousin.

The prosecutor then suggested that Garcia went from being a person Rangel “hung

out” wit h to someone who was essentially an employee. After these statements,

Rangel’s attorney argued repeatedly to the jury that Garcia was a liar and had testified

falsely because of his deal with the government. In its final charge, the district court

instructed the jury that “closing arguments and other statements of counsel should be

disregarded to the extent that they are not supported by the evidence,” that it was up

to the jury to decide “whether the testimony of each witness is truthful and accurate,”

and that the jurors should consider “with caution and great care” the testimony of a witness who receives benefits from the government.

Taken in context, one could conclude that the prosecutor was commenting on the

evidence, not expressing his personal belief in Garcia’s credibility. See United States

v. Clark, 227 F.3d 874, 884-86 (7th Cir. 2000). Counsel’s decision not to object may well

have been a reasonable strategic choice at that moment in the trial. Even if it was not,

however, there is no way that the prosecutor’s remarks could have deprived Rangel of

a fair trial and thus prejudiced him. The defense rebutted the prosecutor’s comments

about Garcia, and the court gave appropriate instructions, which we presume the jury

followed. See United States v. Puckett

, 405 F.3d 589, 599 (7th Cir. 2005); U nitedNo. 99-4292 Page 4

States v. Sandoval, 347 F.3d 627, 631 (7th Cir. 2003).

Rangel also contends that his appellate counsel provided ineffective assistance

by failing to argue that the prosecutor engaged in misconduct by distributing to the

jurors copies of transcripts of telephone conversations that had been altered after a

st ipulation with defense counsel. The stipulated copies indicated that various dates

were “unknown,” while the copies initially distributed to the jury had the dates filled

in. Although this could have caused problems had it gone undetected, in fact trial

counsel objected immediately, the transcripts with da tes were collected right away, and

the jur o rs never had a chance to review them. Outside the presence of the jury, the

prosecutor tried to justify the alterations, but the court threatened a mistrial unless

he used the exact form of the transcript to which the defense had stipulated. He did

as ordered, and that was the end of th e story. It was well within the range of

reasonable appellate representation to conclude that there was no issue worthy of

appeal in this sequence of events. See Lee v. Davis, 328 F.3d 896, 901 (7th Cir. 2003).

Finally, Rangel argues that his sentence is inconsistent with United States v.

Booker, 125 S.Ct. 738 (2005). Not only is this issue beyond the scope of the certificate

of appealability, but it is foreclosed by our decision in McReynol ds v. United States,

397 F.3d 479, 481 (7th Cir. 2005), which held that Booker does not apply retroactively

to criminal cases like R angel’s that became final before B ooker was handed down

(January 12, 2005).

We AFFIRM the judgment of the district court.