* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 15 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. NESTOR LONDONO,

Defendant-Appellant. No. 97-7035 (D.C. No. CV-96-161-S) (E.D. Okla.)

ORDER AND JUDGMENT *

Before BALDOCK , EBEL , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 Mr. Londono filed his § 2255 motion on April 5, 199 6. At the time

Mr. Londono filed his notice of appeal, decisions o f this court applied the 28 U.S.C. § 2253(c) certificate of appealability re quirements of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) to cases filed prior to AEDPA’s April 26, 1996 effective date. In light of the Supreme Court’s recent opinion in Lindh v. Murphy , 117 S. Ct. 2059, 2068 (1997), however, we have he ld that § 2255 movants who filed their actions prior t o AEDPA’s effective date need not obtain a certificate of appealability to procee d on appeal. See United States v. Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir. 1997), cert. d enied , ___ S. Ct. ___, 1998 WL 86544 (1998). Therefore, we need not addre ss Mr. Londono’s motion for a certificate of appealability filed in this co urt, and the same is hereby dismissed. -2- Defendant Nestor Londono appeals from the district court’s order denying his motion to vacate sentence filed pursuant to 28 U.S.C. § 2255. 1 The district court denied Mr. Londono’s motion, and we affirm inpart and reverse in part. Because the United States is a party in this case, Mr. Londono had sixty days from the date of the district court’s judgment , or until January 13, 1997, to file his notice of appeal. See Fed. R. App. P. 4(a)(1). Because he did not file his notice of appeal until February 11, 1997, we initia lly must determine whether this court has jurisdiction to entertain Mr. Londono’s appeal. Filing requirements for appeals are mandatory and j urisdictional. See Senjuro v. Murray , 943 F.2d 36, 37 (10th Cir. 1991). Federal Rule o f Appellate Procedure 4(a)(5) provides, however, that, upon a s howing of excusable neglect or good cause, the district court may grant an exte nsion of time for filing a notice of appeal upon motion of the appellant filed no lat er than thirty days after-3-

expiration of the applicable Rule 4(a)(1) time. If the motion is filed within the thirty-day time frame, the motion may be considered by the district court ex parte.
See Fed. R. App. P. 4(a)(5). If the motion is filed a fter the thirty-day grace period, notice must be given to all parties in acco rdance with local rules. See id. The district court denied defendant’s § 2255 motionon November 14, 1996. On February 10, 1997, defendant mailed his notice o f appeal, an “Ex Parte Motion Seeking Permission of the Court to File Noti ce of Appeal Beyond Time Restrictions,” and a motion to proceed on appeal in forma pauperis to the district court. The district court filed these documents on February 11, 1997, and granted defendant’s motion to file out of time on March 12, 1997. This court docketed defendant’s appeal on March 19, 1997. Because Mr. Londono filed his motion for extension of time outside the thirty-day grace period, and because it was unclearas to whether the government had been given the required notice, this court, on its own motion, challenged its jurisdiction to entertain Mr. Londono’s appeal. Inits response to our jurisdictional challenge, the government advised, h owever, that they received notice of Mr. Londono’s motion for extension of tim e to file his notice of appeal on February 13, 1997. Therefore, because the government received the proper notice, the district court retained jurisdiction to rule on Mr. Londono’s motion,

see Oda v. Transcon Lines Corp. , 650 F.2d 231, 232 (10th Cir. 1981), and its-4-

grant of an extension of time to file a notice of appeal to Mr. Londono was appropriate. Having thus determined that this court has jurisdiction to consider this appeal, we now turn to the merits of Mr. Londo no’s claims.

I. Background Mr. Londono was tried and convicted on one count of conspiracy to possess with intent to distribute cocaine in violation of 2 1 U.S.C. § 846 and one count of interstate travel in aid of racketeering in violati on of 18 U.S.C. §§ 1952(a)(2) and (3), involving a drug trafficking conspiracy extend ing from October 1988 until May 1990. The evidence at trial established that M r. Londono distributed cocaine from his bakery business and his home in Miami, Flo rida. His grand jury indictment identified Jose Alberto Munoz, Reynel Lu go-Avila, Bob Wayne Ford, Connie Jean Ford, and others, both known and unknow n, as co-conspirators. Mr. Londono was sentenced to concurrent prison term s of 292 months on the conspiracy conviction and 60 months on the interstate travel in aid of racketeering conviction. Mr. Londono appealed, claiming (1) the trial court abused its discretion when denying motions for mistrial based upon the ju ry’s inability to reach a verdict; (2) he was denied his constitutional rightof confrontation when hearsay evidence was admitted at sentencing; (3) there was insufficient evidence to-5-

convict on the interstate travel charge; (4) prosec utorial misconduct in opening and closing statements; and (5) the court abused it s discretion in refusing to tender a proposed jury instruction regarding cooper ating witnesses’ testimony. On April 3, 1992, this court affirmed Mr. Londono’s convictions. See United States v. Londono , No. 91-7043, 1992 WL 66724 (10th Cir. Apr. 3, 199 2) (unpublished order and judgment). Mr. Londono’s su bsequent petition for writ of certiorari to the United States Supreme Court was d enied. In Mr. Londono’s § 2255 motion to vacate sentence, he claimed ineffective assistance of appellate counsel. Specifically, he asserted that his appellate counsel failed to raise two sentencing errors on ap peal: (1) that the district court erred when considering fifty kilograms of cocaine a s relevant conduct for purposes of sentencing, and (2) that the court erre d by enhancing his sentence four levels as a leader and organizer. In denying Mr. Londono’s motion, the district court addressed the sentencing guidelines issues and found them to be without merit. The court then found that Mr. Londo no had failed to show that he had been prejudiced by counsel’s omission and denie d Mr. Londono § 2255 motion as procedurally barred. This appeal followe d.

II. Discussion-6-

“[A] defendant may not raise claims that were not p resented on direct appeal unless he can show cause and prejudice resul ting from the error.” United States v. Cook , 45 F.3d 388, 392 (10th Cir. 1995). Appellate cou nsel’s ineffectiveness in not raising these claims can con stitute cause excusing his procedural default. See id. To establish ineffective assistance of counsel, Mr. Londono must show that his appellate counsel’s performance fell below an objective standard of reasonableness, and that coun sel’s deficient performance was prejudicial. See Strickland v. Washington , 466 U.S. 668, 687, 690 (1984). Mr. Londono must prove that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probabili ty sufficient to undermine confidence in the outcome.” Id. at 694. We review Mr. Londono’s ineffectiveness claim de novo. See Brewer v. Reynolds , 51 F.3d 1519, 1523 (10th Cir. 1995). “When a defendant alleges his appellate counsel ren dered ineffective assistance by failing to raise an issue on appeal, we examine the merits of the omitted issue.” Cook , 45 F.3d at 392. If the omitted issue proves to b e meritless, counsel’s failure to raise it does not constitute i neffective assistance. See id. at 393. We therefore turn to the merits of Mr. London o’s claims of sentencing error.-7- A. Relevant Conduct First, Mr. Londono claims that the sentencing courterred in including fifty kilograms of uncharged cocaine as relevant conduct in calculating his base offense level, see U.S.S.G. § 1B1.3. The government has the burden o f proving the quantity of drugs for sentencing by a preponder ance of the evidence. See United States v. Richards , 27 F.3d 465, 468 (10th Cir. 1994). The informati on upon which the district court relies must be suffic iently reliable. See id. When determining a sentencing range, the sentencing guidelines require that a sentencing court include as relevant conductall acts that were part of the same course of conduct or common scheme or plan as the offense of conviction, “regardless of whether the defendant was convicted of the underlying offenses pertaining to the additional amounts.” United Stat es v. Roederer , 11 F.3d 973, 978-79 (10th Cir. 1993) (further quotation omitted) . Whether acts are relevant conduct for a participant in a conspiracy is determ ined by reference to “all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and. . . all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity[.]” U.S.S.G. §§ 1B1.3(a)(1)(A), 1B1.3(a)( 1)(B). A finding of “‘same course of conduct’ does not req uire a connection between the acts in the form of an overall criminal scheme. Rather, the guideline-8-

term contemplates that there be sufficient similari ty and temporal proximity to reasonably suggest that repeated instances of crimi nal behavior constitute a pattern of criminal conduct.” United States v. Tay lor , 97 F.3d 1360, 1365 (10th Cir. 1996) (quoting Roederer , 11 F.3d at 979) (further quotation omitted). Relying on the presentence report and the testimonyof Special Agent John Hersley, the sentencing court determined that the q uantity of cocaine attributable to Mr. Londono for sentencing purposes was seventy- six kilograms. It appears that Mr. Londono does not dispute the use of twenty -six kilograms of cocaine in calculating his base offense level, but only challe nges the additional fifty kilograms found to be relevant conduct. Agent Hers ley testified that Mr. Munoz informed him that Mr. Londono had supplied Mr. Muno z with twenty-six kilograms of cocaine which in turn were provided to Bob and Connie Ford for distribution to others who redistributed the cocain e for street sale in Florida and parts of Oklahoma and Kansas. In an interview upon his arrest, Mr. Munoz stated t o Agent Hersley that he had been distributing cocaine to Bob Ford, Sr. from“mid to late 1988" until his arrest in May 1990. See Appellee’s App. at 21. He stated that he took del ivery of all of the cocaine he supplied to the Fords, with t he exception of one kilogram, from Mr. Londono, either at Mr. Londono’s bakery orat his home. See id. Mr. Munoz related to Agency Hersley that “primarily he would obtain the cocaine to-9-

(sic) Mr. Londono on a front basis, that he would r edistribute that cocaine to the Fords and then pay Mr. Londono after that.” Senten cing Tr., Supp. Vol. I at 17. He also described a pager communication system betw een himself and Mr. Londono used for setting up cocaine transactions. See Appellee’s App.
at 22. Mr. Munoz testified at Mr. Londono’s trial that whe n he questioned Mr. Londono regarding a delay in an expected cocain e delivery, Mr. Londono showed him a newspaper article reporting the arrestof a woman who Mr. Londono indicated was his supplier. See Trial. Tr., Supp. Vol. II at 53-54; see also Sentencing Tr., Supp. Vol. I at 11. Agency Hersle y testified that when this woman, Norse Calle, was arrested, approximatel y 606 kilograms of cocaine were seized. See Sentencing Tr., Supp. Vol. I at 10. Mr. Munoz stated that Mr. Londono told him he was expecting to receive fifty kilograms of that amount.
See id. at 13. The government need only provide evidence of relevant conduct that satisfies a preponderance of the evidence standard. See Richards , 27 F.3d at 468. The record in this case shows that the government s atisfied this burden. Mr. Londono admitted to Mr. Munoz that he was expec ting fifty kilograms from his female supplier who had been arrested. The evi dence establishes that this fifty kilograms of cocaine was part of “an identifi able behavior pattern, of-10-

specified criminal activity.” Roederer , 11 F.3d at 979 (further quotation omitted). Mr. Londono’s expectation of delivery of these drug s was reasonably foreseeable “in light of the nature, extent, and purpose of the conspiracy.” United States v.
Torres , 53 F.3d 1129, 1144 (10th Cir. 1995); see also United States v. Moore , 130 F.3d 1414, 1419 (10th Cir. 1997) (holding that unch arged amounts of drugs may be included as relevant conduct even if the defenda nt never actually possessed or distributed the drugs). We conclude that there is record support for the district court’s determination that these amounts should be considered relevant conduct for purposes of calculating Mr. Londono’s sentence. Therefore, Mr. Londono’s appellate counsel did not render ineffective assist ance when omitting the issue on appeal. See Cook , 45 F.3d at 393 (holding that failure to raise mer itless issue does not constitute ineffective assistance of couns el). We note that in ascertaining whether the uncharged amounts in question may be included as relevant conduct, the district c ourt must make sufficient findings to establish that Mr. Londono “‘aided, abe tted, counseled, commanded, induced, procured, or willfully caused’ the offense in question, or that the acts or omissions were reasonably foreseeable acts or omiss ions of others in furtherance of a jointly undertaken criminal activity.” Taylor , 97 F.3d at 1363 (quoting U.S.S.G. § 1B1.3(a)(1)(A)). Even though it is clear the sentencing court did not make the kind of specific findings required, appell ate counsel’s failure to-11-

challenge the adequacy of the findings on appeal di d not prejudice Mr. Londono in light of the district court’s findings in denyin g Mr. Londono’s § 2255 motion. We conclude that a remand for more specific finding s would not have afforded appellate counsel another opportunity to persuade the sentencing court, but rather only would have afforded the sentencing court an op portunity to make specific evidentiary findings to explain the enhancement -- a requirement that the district court has now adequately provided.

B. Leadership Role Next, Mr. Londono asserts that his appellate counse l rendered ineffective assistance by failing to challenge the sentencing c ourt’s imposition of a four-level enhancement of his sentence for his role as a leade r or organizer. In determining whether appellate counsel was deficient for failing to raise an issue on appeal, we have held that counsel’s strategic decisions to for ego weaker arguments in order to concentrate on those more likely to succeed “is the hallmark of effective advocacy.” Cook , 45 F.3d at 394-95 (quotation omitted). Ineffecti ve assistance of appellate counsel may exist, however, if counsel omitted a “‘dead-bang winner.’” Id. at 395 (quoting Page v. United States , 884 F.2d 300, 302 (7th Cir. 1989)). We have defined a “dead-bang winner” as “a n issue which was obvious from the trial record . . . and one which would have resulted in a reversal on-12-

appeal.” Id. Here, we conclude that, because a challenge to th e sentencing court’s four-level enhancement of Mr. Londono’s sentence as a leader or organizer is obviously meritorious, its omission fr om Mr. Londono’s direct appeal constitutes ineffective assistance of counsel. Section 3B1.1(a) of the Sentencing Guidelines provi des for a four-level enhancement of a defendant’s base offense level “[i ]f the defendant was an organizer or leader of a criminal activity that inv olved five or more participants or was otherwise extensive.” This court held that in order to support a leader or organizer enhancement, the sentencing court must fi nd, “first, that the defendant is an organizer or leader; and, second, that the cr iminal activity involved five or more participants or was otherwise extensive.” Torres , 53 F.3d at 1142 (further quotation omitted). The Sentencing Guidelines provide that, in assessin g a defendant’s leadership role, the sentencing court should consid er the exercise of decision making authority, the natu re of participation in the commission of the offense, the recruitment o f accomplices, the claimed right to a larger share of the fruits of th e crime, the degree of participation in planning or organizing the offense , the nature and scope of the illegal activity, and the degree of co ntrol and authority exercised over others. U.S.S.G. § 3B1.1, Commentary, Application Note 4; s ee also Torres , 53 F.3d at 1142. It should be emphasized that this enhancement is based on the degree of “control, organization, and responsibility” exertedby the defendant over others,-13-

and is not to be levied against those who are only “important or essential figures” in the criminal enterprise. Torres , 53 F.3d at 1142. (further quotation omitted).
In Torres , the defendant’s presentence report contained a co nclusory statement that “[t]he investigation revealed that t he defendant was a leader in a criminal organization that involved five or more pa rticipants and was otherwise extensive.” Id. at 1143 (further quotation omitted). In finding t he enhancement appropriate, the sentencing court did not consider any of the factors suggested by the commentary to § 3B1.1, but only stated that the re were five or more participants involved and that the defendant was “t he engine that made this train run.” Id. In reviewing the record in Torres , this court concluded that there was no evidence that the other coconspirators worked for the defendant, that they received any type of remuneration from the defendan t, that the defendant restricted the people to whom the other coconspirat ors could sell their drugs, that he controlled the manner or the place of delivery o f the drugs, that the defendant set the prices at which the drugs could be redistri buted or sold, that the defendant recruited people, or that he claimed a right to a l arger share of the monetary gain.
See id. Consequently, we held that the government had fai led to carry its burden of proof as to the propriety of the enhancement. S ee id.2 We have held that “even if the record evidence overwhelmingly supports

the enhancement, appellate fact-finding cannot subs titute for the district court’s duty to articulate clearly the reasons for the enha ncement.” United States v. Wacker , 72 F.3d 1453, 1477 (10th Cir. 1995). Because we review whether counsel rendered legally deficient performance and whether this performance prejudiced the defendant under the de novo standard , see Brewer , 51 F.3d at 1523, we have decided the issue based on a thorough revie w of the record. In remanding, however, we remind the district court th at a determination of enhancement under U.S.S.G. § 3B1.1 requires the sentencing court to “make specific findings and ‘advanc[e] a factual basis’ t o support an enhancement.” United States v. Ivy , 83 F.3d 1266, 1292 (10th Cir.) (quoting Wacker , 72 F.3d at 1477), cert. denied , 117 S. Ct. 253 (1996). -14- The analysis employed by this court in Torres is applicable here. In imposing the four-level enhancement to Mr. Londono’ s sentence, the court stated: [T]he Court finds that by a preponderance of the ev idence there should be a 4 level increase for an aggravated role in the instant offense because the defendant carried out a leaders hip role in an otherwise extensive operation in which he was at ornear the top. Without him this operation either stops or slows do wn. And this information comes solely from Munoz through Hersley , and some limited corroboration, believed by the jury, all se t out in paragraph 14 of the Presentence Investigation. Sentencing Trans., Supp. Vol. I at 50. 2 Paragraph 14 of Mr. Londono’s presentence report st ates: The defendant was the highest ranking member or lea der of the cocaine distribution structure described in the Off ense Conduct section of this report. He was the only apparent m ember of the organization that dealt with the aforementioned cartel linked cocaine suppliers which is indicative of his rank or positi on. Through case agents as well as testimony of co-conspirators, it has been established that the defendant was involved in or directed exte nsive criminal activity throughout the life of the conspiracy char ged. Pursuant to-15-

Section 3B1.1(a), 4 levels are added for the defend ant’s aggravated role in the offense. Presentence Report at 4. In this case, the district court and the governmentcited numerous parts of the trial transcript in support of the contention t hat Mr. Londono exercised a leadership and control position in the drug traffic king conspiracy. Our review of these citations to the record reveals only that Mr. Londono supplied cocaine to Mr. Munoz and was paid accordingly, that the drug s ales took place in various places including Mr. Londono’s bakery and his home, that Mr. Londono fronted cocaine to Mr. Munoz and was paid after Mr. Munoz h ad resold the drugs to Bob Ford, and that Mr. Londono informed Mr. Munoz that a shipment he was expecting had been delayed because his female suppl ier had been arrested. These facts would indicate the level of Mr. Londono’s inv olvement in the criminal enterprise, but fail to establish that Mr. Londono organized, led, or controlled the conspiracy. The record is void of evidence demonstrating that Mr. Londono restricted or controlled any of the people to whom Mr. Munoz supplied drugs, that he recruited any of those who distributed or sold the drugs, that he controlled any of the places of redistribution, or that he set anyretail prices. Although the record indicates that Mr. Munoz paid Mr. Londono fo r the cocaine at the price he asked, there is no evidence that Mr. Londono receiv ed any other remuneration from the distribution process.3 To support a finding that a defendant was a leader or organizer for

enhancement under § 3B1.1(a) of the Sentencing Guid elines, the sentencing court must find (1) that the defendant was a leader or or ganizer, and (2) that the criminal enterprise involved five or more persons o r was otherwise extensive. See Torres , 53 F.3d at 1142. We note that four persons, incl uding Mr. Munoz, were named in the grand jury indictment with Mr. Lo ndono, along with others, known and unknown, who were not specifically named. In addition, Mr. Munoz stated to Agent Hersley that he had supplied a pers on known as John Bailey in Tampa, Florida. See Appellee’s App. at 23. Mr. Munoz distributed coca ine to Bob Ford who redistributed it to persons in Oklahom a and Kansas. It appears likely that this evidence would support a finding that the criminal conspiracy of which Mr. Londono was a part included five persons and was extensive. Because we determine that the government did not meet its b urden of proof as to the first criteria, that Mr. Londono was a leader or organize r, we need not definitively address the criteria of whether the conspiracy invo lved five or more persons or was otherwise extensive. -16- Although the sentencing court may have been correctin its determination that “[w]ithout [Mr. Londono] this operation eitherstops or slows down,” Sentencing Tr., Supp. Vol. I at 50, this is only in dicative of Mr. Londono’s importance to the drug operation, and not indicativ e of whether he was a leader or organizer who exercised control over the other pers ons involved, see Torres , 53 F.3d at 1143. Based on the record before us, we th erefore conclude that Mr. Londono did not exert any control over the drug dis tribution conspiracy other than that inherent in a buyer/seller relationship. See United States v. Owens , 70 F.3d 1118, 1129 (10th Cir. 1995) (holding that the mere fact that defendant supplied cocaine to others, without more, does not support aleadership role enhancement). 3 Under these circumstances, we conclude that appel late counsel’s-17-

failure to raise the leadership enhancement issue o n direct appeal was constitutionally deficient and establishes cause fo r Mr. Londono’s procedural default of the issue. See Cook , 45 F.3d at 392. As to the prejudice prong of Strickland , we have held that when counsel’s deficient performance results in a significantly lo nger sentence, the prejudice prong of Stricklandis satisfied. See United States v. Kissick , 69 F.3d 1048, 1056 (10th Cir. 1995). Here, the sentencing court consi dered an applicable sentencing guidelines range of between 292 and 365 months base d on a base offense level of forty. A four-level reduction would indicate a sentencing range of between 188 and 235 months based on an offense level of thirty- six. We conclude that this significant difference constitutes prejudice under Strickland . See id

.

III. Conclusion In sum, we determine that the sentencing court corr ectly calculated the amount of drugs attributable to Mr. Londono for purposes of determining his base offense level. Counsel’s decision to omit this iss ue as weak was appropriate trial strategy, and within an objective standard of reaso nable advocacy. See Cook , 45 F.3d at 394-95 (holding that counsel’s strategic de cision to omit weaker issues does not violate Sixth Amendment’s right to effecti ve assistance). Mr. Londono therefore, has failed to establish cause and prejud ice resulting from counsel’s-18-

failure to raise the issue on direct appeal, and th e district court correctly deemed the issue procedurally barred. Although Mr. Londono did not raise the leadership e nhancement issue on direct appeal, we hold that the probable success of the issue is obvious from the record, and, but for counsel’s failure to raise the issue, there is a reasonable probability that the outcome of the appellate proce eding would have been different. See Strickland , 466 U.S. at 694. Therefore, Mr. Londono has established cause and prejudice excusing the omissi on. We thus AFFIRM the judgment of the United States Di strict Court for the Eastern District of Oklahoma, denying Mr. Londono § 2255 relief on the relevant conduct issue. The district court’s denial of reli ef under § 2255 on the issue of appellate counsel’s erroneous failure to raise the issue of improper leadership enhancement is VACATED, and the cause is REMANDED f or further proceedings consistent with this order and judgment

.

Entered for the Court

Bobby R. Baldock Circuit Judge