* This order and judgment is not binding precedent, except under the

doctrines of res judicata, collateral estoppel, and law of the case. 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.

** After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ reques t for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1 (G). The case is therefore submitted without oral argument. 

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

### APR 1 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 03-5037

v. (N. D. Oklahoma) RUDOLPHO COYAZO, JR.,

Defendant-Appellant. (D.C. Nos. 01-CV-71-P; 98-CR-43-P)

ORDER AND JUDGMENT *

Before EBEL , HENRY , and HARTZ , Circuit Judges. **

Rudolpho Coyazo, Jr., a federal prisoner, appeals t he district court’s decision denying his 28 U.S.C. § 2255 motion to vac ate, set aside, or modify his sentence. For the reasons set forth below, we conc lude that the evidence is-2-

insufficient to support one of the offenses of whic h Mr. Coyazo was convicted: the March 11, 1998, armed robbery of the Holiday In n Express in violation of the Hobbs Act, 18 U.S.C. § 1951, as alleged in Count 13 of the indictment. However, the evidence is overwhelming that Mr. Coyazo committed a lesser included offense, attempted robbery (also a violation of 18 U.S.C. § 1951). Accordingly, we vacate Mr. Coyazo’s armed robbery conviction and remand the case to the district court with instructions to enter a convict ion for attempted robbery in violation of § 1951 and for further proceedings con sistent with this order and judgment.

I. BACKGROUND A jury convicted Mr. Coyazo of ten counts of armed robbery, in violation of 18 U.S.C. § 1951; four counts of using or carryi ng a gun during a crime of violence, in violation of 18 U.S.C. § 924(c); and o ne count of escape, in violation of 18 U.S.C. § 751. The convictions involve a seri es of robberies of hotels, motels, and a drug store in Tulsa, Oklahoma, betwee n January and March 1998; Mr. Coyazo’s use and carrying of a gun during these robberies; and Mr. Coyazo’s March 30, 1998, escape from jail. The district cou rt sentenced him to a total of 948 months’ imprisonment, and this court affirmed M r. Coyazo’s convictions on-3-

direct appeal. See United States v. Coyazo , Nos. 98-5117, 5214, 1999 WL 999707 (10th Cir. Nov. 4, 1999). Mr. Coyazo then filed the instant 28 U.S.C. § 2255 motion to vacate, modify, or set aside his sentence. He alleged that(1) the grand jury issued an improper indictment; (2) the indictment was insuffi cient to place him on actual notice of the offense charged in Count 13, and the jury instructions constructively amended the indictment; (3) the district court erre d in denying his motion for a judgment of acquittal; (4) he received ineffective assistance of trial counsel because his trial counsel failed to file a motion t o suppress his confession and failed to move for a judgment of acquittal on Count13; and (5) he received ineffective assistance of appellate counsel because counsel failed to challenge ths sufficiency of the evidence as to Count 13. The district court denied Mr. Coyazo’s § 2255 moti on. See Rec. doc. 93 (Dist. Ct. Order, filed Jan. 29, 2003). Mr. Coyazo then sought a certificate of appealability (COA), see 28 U.S.C. § 2253, on only the following issues: (1 ) whether the district court erred in rejecting his c laim that Count 13 failed to provide him with adequate notice of the charged off ense; (2) whether the evidence of attempted robbery was sufficient to est ablish an effect on interstate commerce sufficient to establish the district court ’s subject matter jurisdiction as to Count 13; (3) whether the district court erred i n finding the evidence sufficient-4-

to support the 18 U.S.C. § 1951 robbery conviction alleged in Count 13 of the indictment; and (4) whether he received ineffective assistance of counsel because his lawyers failed to challenge his conviction on C ount 13 on these grounds. Mr. Coyazo’s arguments concern Count 13 of the indi ctment, which alleges: On or about the 11th day of March, 1998, in the

Northern District of Oklahoma, the defendant Rodolp ho Coyazo, Jr., did unlawfully obstruct, delay and affect, and attempt to obstruct, delay and affect commerce, as that term is defined in Title 18, United States Code, Se ction 1951, and the movement of articles and commodities in such commerce, by robbery, as that term is defined in Title 18, United States Code, Section 1951, in that the d efendant Rodolpho Coyazo, Jr., did unlawfully take and obtai n money from the presence of an employee at Holiday Inn Express . . . , a company that conducted and conduc ts business in interstate commerce, against the employ ee’s will by means of actual and threatened force, viole nce and fear of injury, immediate and future, to the employ ee’s person, that is, by the use of a firearm, in violat ion of Title 18, United States Code, Section 1951. Rec. doc. 5, at 13 (emphasis added). At trial, the jury received the following instructi on on all of the robbery counts (including Count 13):

In order for the defendant to be found guilty of th e offense charged in each of the above-stated counts, the government must prove each of the following element s beyond a reasonable doubt: (1) The defendant obtained property from the person alleged in the particular count under consideration ;-5- (2) The defendant did so knowingly and deliberately by robbery; and (3) The robbery obstructed or affected interstate commerce. Rec. doc. 34, instr. 11 (emphasis added). As the district court explained, the evidence at tr ial supported the conclusion that Mr. Coyazo attempted to rob the Holiday Inn Express on March 11, 1998, but not that he had succeeded in taking any money or pr operty:

[T]he direct and circumstantial evidence supports t he jury’s verdict that Petitioner attempted to rob the motel when he entered with a gun but fled after shooting the night clerk. . . . Even though there is no evidence that the robber demanded money or left the motel with any mo ney, the jury heard evidence from [the night clerk] rega rding the weapon used and that [the clerk] had identified Petitioner as the robber. Additionally, the jury h eard evidence that Petitioner had robbed two motels and adrug store two hours before the armed robbery at the Hol iday Inn Express where [the night clerk] was shot. The jury heard witnesses at these other robberies describe t he weapon and the photograph of the robber which they identified. It was the same photograph which [the clerk] identified. Further, the jury heard testimony that Petitioner had confessed to several robberies of ho tels, including a robbery of a Super 8 Motel on March 11, 1998, just a couple of hours prior to [the night clerk atthe Holiday Inn Express] being shot. Rec. doc. 93, at 22-23 (internal citations omitted)

. This court granted a certificate of appealability ( COA) on Mr. Coyazo’s third and fourth claims (sufficiency of the evidenc e and ineffective assistance of counsel).-6- II. DISCUSSION We begin with a brief discussion of the issues on w hich we have not granted a COA: (1) Mr. Coyazo’s claim that Count 13 failed provide him with adequate notice; and (2) his claim that the distric t court lacked subject matter jurisdiction because of a lack of evidence that the alleged robbery affected interstate commerce. Then, we turn to the claims r egarding (3) sufficiency of the evidence and (4) ineffective assistance of counsel. In order to obtain a COA, Mr. Coyazo must make “a s ubstantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Mr. Coyazo may make this showing by demonstrating that “‘reasonabl e jurists would find the district court’s assessment of the constitutional c laims debatable or wrong.’” Miller-El v. Cockrell , 537 U.S. 322, 338 (2003) (quoting Slack v. McDaniel , 529 U.S. 473, 484 (2000)). “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that [the] petitioner will not preva il.” Id.

A. Notice Provided by the Indictment Mr. Coyazo contends that because he was charged wit h robbery rather than attempted robbery, and because the jury was instruc ted on the elements of robbery rather than attempted robbery, the indictment provi ded him with insufficient-7-

notice of the actual charges against him. This arg ument is not supported by the applicable law. In particular, the statute at issue in Count 13, 18 U.S.C. § 1951, prohibits bothrobbery and attempted robbery. United States v. Z eigler , 19 F.3d 486, 490 (10th Cir. 1994) (stating that “the Hobbs Act also prohibits ‘attempted’ robbery” and that “[m]any courts, including this one, have s ustained jurisdiction under the Hobbs Act in cases of attempted robbery . . . prese nting only potential effects on interstate commerce”). Thus, even though the indic tment described the offense as robbery rather than attempted robbery, it provided Mr. Coyazo with sufficient notice of the date, time, and place of the charged conduct and cited the statute defining the offense. There is thus no indication that the wording of Count 13 prejudiced Mr. Coyazo’s defense at trial. See United States v. Lotspeich , 796 F.2d 1268, 1273 (10th Cir. 1986) (stating that “an indictment is sufficient if it provides the defendant with adequate notice of the charges and an opportunity to prepare his defense”). Moreover, the fact that the evidence at trial estab lished only an attempted robbery of the Holiday Inn Express on March 11, 199 8, does not establish that the indictment was constructively amended in violation of the Fifth Amendment. A constructive amendment “occurs when the terms of th e indictment are in effect altered by the presentation of evidence and jury in structions which so modify-8-

essential elements of the offense charged that ther e is a substantial likelihood that the defendant may have been convicted of an offense other than that charged in the indictment.” United States v. Hornung , 848 F.2d 1040, 1046 (10th Cir. 1988) (internal quotation marks omitted). However, “a de fendant may be convicted of a lesser offense necessarily included in the offense with which he is charged.” 3
C HARLES A LAN W RIGHT ET AL ., F EDERAL P RACTICE & P ROCEDURE C RIM
. § 516, at 45 (3d ed. 2004); F ED
. R. C RIM
. P. 31(c) (stating that “[a] defendant may be found guilty of . . . an attempt to commit the offense ch arged . . . or . . . an attempt to commit an offense necessarily included in the offen se charged, if the attempt is an offense in its own right”). Here, attempted robbery under the Hobbs Act is a le sser included offense of robbery under the Hobbs Act. See United States v. Remigio , 767 F.2d 730, 733 (10th Cir. 1985) (stating that “[t]he crime of atte mpt is a lesser included offense of the substantive crime”). Accordingly, the fact that the government presented evidence of attempted robbery rather than robbery d oes not establish that it constructively amended the indictment. See United States v. Chilingirian , 280 F.3d 704, 711-12 (6th Cir. 2002) (concluding that a n indictment was not constructively amended when the government presente d evidence sufficient to support a conviction for a lesser included offense)

.-9- B. Evidence of Effect on Interstate Commerce Mr. Coyazo also argues that because the evidence es tablished only that he attempted to rob the Holiday Inn Express on March 1 1, 1998, the government failed to establish that the offense affected inter state commerce, as required under § 1951. However, in this circuit, “only a potentia l effect on commerce is required to satisfy the interstate commerce element [require d for a § 1951 conviction].” United States v. Wiseman , 172 F.3d 1196, 1216 (10th Cir. 1999). Thus, the government may establish an effect on interstate co mmerce by showing that the offense “ could

have decreased the business’ sales in interstate c ommerce.” United States v. Toles , 297 F.3d 959, 969 (10th Cir. 2002); see also United States v. Norris , 792 F.2d 956, 957-58 (10th Cir. 1986) (noting that “a single attempt . . . fell with [§ 1951’s] prohibition”). Therefore, t he fact that the government did not prove that Mr. Coyazo took any money from the H oliday Inn Express does not demonstrate that it failed to prove the interstate commerce element under § 1951.

C. Sufficiency of the Evidence Next, Mr. Coyazo challenges the sufficiency of the evidence supporting his conviction of the Hobbs Act robbery charged in Coun t 13 of the indictment. In support of this argument, he points to the distr ict court’s conclusion that “there is no evidence that the robber demanded money or le ft the motel with any-10-

money.” Rec. doc. 93, at 22. As noted above, we h ave granted a COA on this issue. In his direct appeal, Mr. Coyazo did not challenge the sufficiency of the evidence supporting the Hobbs Act robbery alleged i n Count 13. Ordinarily, when “a defendant has procedurally defaulted a clai m by failing to raise it on direct review, the claim may be raised in habeas on ly if the defendant can first demonstrate either cause and actual prejudice or th at he is actually innocent.” Bousley v. United States , 523 U.S. 614, 622 (1998) (internal citations omitted). Here, the government’s brief provides support for t he conclusion that Mr. Coyazo is actually innocent of the Hobbs Act robbery charged in Count 13. In particular, the government concedes that “the evide nce was insufficient to convict [Mr.] Coyazo of robbery as charged in Count 13 .” Aple’s Br. at 15 (emphasis added). However, the government further contends, “the evidence was sufficient to convict [Mr. Coyazo] of attempted robbery as cha rged in Count 13.” Id. Accordingly, in order to analyze the issue of actua l innocence, we must consider whether the evidence of attempted robbery—which Mr. Coyazo himself does not here dispute—is sufficient to support the convictio n. For several reasons, we conclude that the evidence of attempted robbery is not sufficient to support the Count 13 conviction. First, contrary to the view of the district court and the government, Count 13 of the indictment does notallege attempted robbery. Although Count 13 paraphrases the language of § 1951 by-11-

alleging that Mr. Coyazo “did unlawfully obstruct, delay, and affect, and attempt to obstruct, delay and affect commerce,” Count 13 p roceeds to explain that Mr. Coyazo did so “by robbery ” and then further specifies that Mr. Coyazo “did unlawfully take and obtain moneyfrom the presence of an employee of Holiday Inn Express.” Rec. doc. 5, at 13 (emphasis added). This language alleges robbery; it cannot reasonably be construed as alleg ing attempted robbery. Moreover, the jury was instructed that in order to find Mr. Coyazo guilty of all the Hobbs Act counts, including Count 13, it had to find beyond a reasonable doubt that Mr. Coyazo “obtained property from the p erson alleged in the particular count under consideration ,” that he did so “so knowingly and deliberately by robbery ,” and that “[t]he robberyobstructed or affected interstate commerce.” Rec. doc. 34, instr. 11 (emphasis added ). Finally, the judgment entered by the district court groups Count 13 with the convictions of Counts 7, 9, and 11 and describes the “nature of [each of these] offense[s]” as “Armed Robbery Affecting Interstate Commerce. ” Rec. doc. 39 (Judgment in a Criminal Case, entered Oct. 23, 1998) (emphasis added). Thus, Mr. Coyazo was charged with and convicted of robbery, not attempted robbery. The evidence of attempted robbe ry is insufficient to support the conviction for robbery, and Mr. Coyazo is actua lly innocent of the latter offense.-12-

Nevertheless, we do not agree with Mr. Coyazo that the absence of evidence supporting the Count 13 conviction require s us to “[r]everse and remand with instructions for the [d]istrict [c]ourtto dismiss.” Aplt’s Br. at 3. As noted above, § 1951 prohibits bothrobbery and attempted robbery, Zeigler , 19 F.3d at 490, and attempted robbery is a lesser incl uded offense of robbery. See Remigio , 767 F.2d at 733. This court has “exercised [its] power under 28 U.S.C. § 2106 to reduce a conviction of a greater offense, based on insufficient evidence, to that of a lesser included offense.” United Stat es v. Smith , 13 F.3d 380, 383 (10th Cir. 1993) (citing United States v. Indus. La bs. Inc. , 456 F.2d 908, 911 (10th Cir. 1972)); see 28 U.S.C. § 2106 (“The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacat e, set aside or reverse any judgment, decree, or order of a court lawfully brou ght before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.”). In order to do so, “[i]t must be clear (1) that the evidence adduced at trial fails to support one or more eleme nts of the crime of which appellant was convicted, (2) that such evidence suf ficiently sustains all the elements of another offense, (3) that the latter is a lesser included offense of the former, and (4) that no undue prejudice will resultto the accused.” Smith , 13 F.3d at 383 (quoting Allison v. United States , 409 F.2d 445, 451 (D.C. Cir. 1969)).-13-

As we have noted, the first three factors are estab lished here. Moreover, in light of the opportunity afforded Mr. Coyazo to def end against the charge set forth in Count 13 at trial, there is no indication that undue prejudice would result from the entry of a judgment on the lesser included offense of attempted robbery. Accordingly, we conclude that Mr. Coyazo’s convicti on of armed robbery in violation of 18 U.S.C. § 1951, as charged in Count 13 of the indictment, should be vacated and that the case should be remanded to the district court with directions to amend the judgment by entering a conv iction on Count 13 for attempted robbery under § 1951 and for further proc eedings consistent with this order and judgment. See Smith , 13 F.3d at 383.

D. Ineffective Assistance of Counsel Finally, Mr. Coyazo argues that he received ineffec tive assistance of counsel because his lawyers did not challenge the s ufficiency of the evidence as to Count 13. We are not persuaded by his argument. Under Strickland v. Washington , 466 U.S. 668, 693-94 (1984), in order to prevail on his ineffective assistance of counsel cl aim, Mr. Coyazo must demonstrate that (1) his counsel committed serious errors in light of prevailing professional norms, and (2) there is a reasonable p robability that the outcome would have been different had those errors not occu rred. Here, Mr. Coyazo has failed to establish prejudice. Although the eviden ce was insufficient to support a-14-

conviction for armed robbery, Mr. Coyazo does not d ispute that the evidence was sufficient to establish attempted armed robbery, it self a violation of § 1951. See Zeigler , 19 F.3d at 490. Moreover, Mr. Coyazo has not arg ued that a conviction for attempted armed robbery under § 1951 rather tha n armed robbery under § 1951 would have had any affect on his sentence. Ac cordingly, Mr. Coyazo is not entitled to relief on his ineffective assistance of counsel claim.

III. CONCLUSION Accordingly, we VACATE Mr. Coyazo’s conviction forthe armed robbery in violation of 18 U.S.C. § 1951, as charged in Cou nt 13 of the indictment, and we REMAND the case to the district court with instr uctions to enter an amended judgment of conviction for attempted armed robbery in violation of § 1951 and for further proceedings consistent with this order and judgment.

Entered for the Court,

Robert H. Henry Circuit Judge