* Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

 

1 Saucedo also filed a motion for leave to file a reply brief

out of time, which was granted; however, Saucedo then failed to

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-50545

(Summary Calendar)

UNITED STATES OF AMERICA,

Plaintiff-Appellee, 

versus

RICHARD RAUL SAUCEDO, 

Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of Texas

(A-93-CR-89 & A-93-CA-100)

June 19, 1996

Before GARWOOD, WIENER and PARKER, Circuit Judges. 

PER CURIAM:*

Defendant-Appellant Richard Raul Saucedo, a federal prisoner

proceeding pro se, appeals the district court’s denial of his

§ 2255 motion to vacate, set aside, or correct his sentence.1 In
file such a brief within the additional time permitted. 

2

this motion, Saucedo proffered issues implicating ineffective

assistance of counsel, improper sentencing under the Guidelines,

and failure of the district court to make specific findings and to

review transcripts of the sentencing and arraignment hearings. In

response, the government urged that in his plea agreement Saucedo

waived his right to appeal his sentence. For the reasons set forth

below, we affirm the rulings of the district court in part, and

vacate and remand in part. 

I

FACTS AND PROCEEDINGS

Richard Raul Saucedo pleaded guilty, pursuant to a plea

agreement; however, the record is unclear as to exactly what charge

Saucedo pleaded. Saucedo’s § 2255 motion states that he was

convicted of the conspiracy charge. This is consistent with

Saucedo’s plea agreement and the Presentence Report (PSR) which

indicate that he pleaded guilty to Count One of the indictment:

conspiracy to possess with intent to distribute marijuana. Not so

the judgment, however, which states that Saucedo was convicted of

Count Three of the indictment: possession with intent to distribute

marijuana. The district court sentenced Saucedo to 63 months’

imprisonment followed by five years of supervised release, and

Saucedo did not appeal directly. 

Saucedo subsequently filed a § 2255 motion alleging that
3

(1) the government failed to prove conspiracy because he was the

only one charged with conspiracy, (2) he was entitled to a

reduction in his base offense level for acceptance of

responsibility and minimal participation in the criminal offense,

and (3) he was denied effective assistance of counsel because his

lawyer failed to object to the PSR’s omission of these reductions.

After the government responded, Saucedo filed a pleading titled

"Traverse to the Government’s Response," raising new allegations of

ineffective assistance of counsel and alleging that the district

court erred by considering improper relevant conduct in its

sentencing determination. 

The magistrate judge entered a report and recommendation which

addressed only the issues raised in Saucedo’s § 2255 motion and

recommending that it be denied. Saucedo filed objections, but the

district court adopted the magistrate judge’s report and

recommendation and denied Saucedo’s § 2255 motion. Saucedo timely

appealed after his motion for reconsideration was denied. 

II

ANALYSIS

Saucedo argues on appeal that he was deprived of a full and

fair hearing when the district court failed to make the specific

finding that "the files and record of the case conclusively

disentitled the movant to the relief sought," and that the district

court could not deny him relief without reviewing copies of the

"transcript." Saucedo also argues that the district court’s
4

imposition of a sentence under § 1B1.3 of the Sentencing Guidelines

and under 28 U.S.C. § 994(l)(1)(A) was improper because the court

considered dismissed counts of the indictment as relevant conduct.

Finally, Saucedo argues that he was denied effective assistance of

counsel because his lawyer failed to object to the district court’s

consideration of improper relevant conduct in sentencing and failed

to explain the PSR and post-plea proceedings to him. 

Saucedo raised the issues relating to sentencing and

ineffective-assistance-of-counsel for failure to object in his

"Traverse to the Government’s Response," thereby placing them

before the district court. He is deemed to have abandoned all

other issues raised in his original § 2255 motion (ineffective

assistance of counsel for failure to object to omission of baseoffense-level reductions, improper conspiracy charge, and failure

to reduce his base offense level for acceptance of responsibility

and minimal participation) by failing to argue them on appeal. See

Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). We shall

consider below only those issues that Saucedo has properly reserved

and presented on appeal. 

A. Ineffective Assistance of Counsel

Liberally construing Saucedo’s appellate brief, we read it to

argue that he was denied effective assistance of counsel by his

counsel’s failure to explain to him the post-plea proceedings and

the PSR, so as to elicit his objections; and by counsel’s failure

to object to the district court's consideration of dismissed counts
5

of the indictment as relevant conduct. To prevail on an

ineffective assistance claim, a petitioner must show "that

counsel's performance was deficient" and "that the deficient

performance prejudiced the defense." Strickland v. Washington, 466

U.S. 668, 687 (1984). To prove deficient performance, the

petitioner must show that counsel's actions "fell below an

objective standard of reasonableness." Id. at 688. To prove

prejudice, the petitioner must show that "there is a reasonable

probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different," id. at 694,

and that "counsel's deficient performance render[ed] the result of

the trial unreliable or the proceeding fundamentally unfair."

Lockhart v. Fretwell, 506 U.S. 364, 372, (1993). A reasonable

probability is a probability sufficient to undermine confidence in

the outcome of the proceeding. Strickland, 466 U.S. at 694. To

prove unreliability or unfairness, the petitioner must show the

deprivation of a "substantive or procedural right to which the law

entitles him." Fretwell, 506 U.S. at 372. In evaluating such

claims, we indulge in "a strong presumption" that counsel's

representation fell "within the wide range of reasonable

professional competence, or that, under the circumstances, the

challenged action `might be considered sound trial strategy.'"

Bridge v. Lynaugh, 838 F.2d 770, 773 (5th Cir. 1988) (citation

omitted). Saucedo has the burden of overcoming that presumption.

See id. "A fair assessment of attorney performance requires that
6

every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel's challenged

conduct, and to evaluate the conduct from counsel's perspective at

the time." Strickland, 466 U.S. at 689. A failure to establish

either deficient performance or prejudice defeats the claim. Id.

at 697. An ineffectiveness claim based on speculation or

conclusional rhetoric will not warrant relief. See Lincecum v.

Collins, 958 F.2d 1271, 1279-80 (5th Cir.), cert. denied, 506 U.S.

957 (1992). 

We have applied the Strickland standard in the noncapital

sentencing context. Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir.

1993). 

[I]n deciding such an ineffectiveness claim, a court must

determine whether there is a reasonable probability that

but for trial counsel's errors the defendant's noncapital

sentence would have been significantly less harsh. In

deciding whether such prejudice occurred, a court should

consider a number of factors: the actual amount of the

sentence imposed on the defendant by the sentencing judge

or jury; the minimum and maximum sentences possible under

the relevant statute or sentencing guidelines, the

relative placement of the sentence actually imposed

within the range, and the various relevant mitigating and

aggravating factors that were properly considered by the

sentencer.

Id. at 88-89 (footnote omitted). We noted "one foreseeable

exception to this requirement would be when a deficiency by counsel

resulted in a specific, demonstrable enhancement in sentencing --

such as an automatic increase for a `career' offender or an

enhancement for use of a handgun during a felony -- which would
7

have not occurred but for counsel's error." Id. at 89 n.4.

Saucedo’s argument relating to the district court’s

consideration of relevant conduct is unclear. He might be arguing

that the district court erred by considering dismissed counts of

the indictment as a basis to enhance his sentence, and his counsel

was deficient for not objecting. Or he might be arguing that the

district court erred in calculating his base offense level by using

270 pounds of marijuana, which was the amount attributed to the

entire conspiracy in which he was involved, because the conspiracy

count was dismissed and he should have been sentenced for

possession only. 

If Saucedo was convicted of the conspiracy charge, his base

offense level may be based on drugs that can be attributed to him

in a conspiracy as part of his relevant conduct, U.S.S.G.

§ 1B1.3(a)(1)(A), and the PSR provided reliable evidence to allow

the district court to make factual determinations required in

assessing an appropriate sentence. United States v. Alfaro, 919

F.2d 962, 966 (5th Cir. 1990). If Saucedo was convicted of the

possession charge, however, his arguments of ineffective assistance

of counsel for failure to object to his sentencing calculation may

have some merit. 

The PSR does not adequately present counsel’s objections,

stating that Saucedo’s attorneys "submitted eleven pages of

objections, however, only one of these objections is scoring and

will be addressed in the addendum. The remaining objections appear
8

to be insignificant and/or incorrect." Given (1) the discrepancy

in the record between the specific charge to which Saucedo pleaded

guilty and what he was sentenced for, (2) the PSR’s inadequate

presentation of counsel’s objections, and (3) the district court’s

failure to address this ineffective assistance of counsel argument,

we cannot properly review Saucedo’s properly presented assertions.

Accordingly, we remand this issue to the district court for

clarification and findings. 

Next —— and for the first time on appeal —— Saucedo raises the

issue of ineffective assistance of counsel resulting from his

lawyer’s failure to explain post-plea proceedings and the PSR.

"[I]ssues raised for the first time on appeal are not reviewable by

this [C]ourt unless they involve purely legal questions and failure

to consider them would result in manifest injustice." Varnado v.

Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). As Saucedo’s

ineffective-assistance-of-counsel claim involves a mixed question

of law and fact, we need not, and therefore do not, consider it.

See id.; United States v. Faubion, 19 F.3d 226, 228 (5th Cir.

1994). Given the discrepancy in the record, however, this issue

may have some merit. It is therefore remanded to the district

court for consideration along with the other remanded claim of

ineffective assistance of counsel.

B. Sentence

Relief under § 2255 is reserved for transgressions of

constitutional rights and for a narrow range of injuries that could
 

2 "(l) The Commission shall insure that the guidelines

promulgated pursuant to subsection (a)(1) reflect-

(1) the appropriateness of imposing an incremental penalty

for each offense in a case in which a defendant is convicted

of -

(A) multiple offenses committed in the same course of

conduct that result in the exercise of ancillary

jurisdiction over one or more of the offenses . . ." 

9

not have been raised on direct appeal and would, if condoned,

result in a complete miscarriage of justice. United States v.

Capua, 656 F.2d 1033, 1037 (5th Cir. 1981). A district court's

technical application of the Guidelines does not give rise to a

constitutional issue. United States v. Vaughn, 955 F.2d 367, 368

(5th Cir. 1992). 

Saucedo's challenge to the district court's application of

§ 1B1.3 of the Guidelines is not cognizable under § 2255. See id.

His reliance upon § 994(l)(1)(A)2 is misplaced, as this provision

is a Sentencing Commission policy statement relating to application

of the Guidelines to a multiple-offense conviction. Saucedo

pleaded guilty to one offense only and the district court sentenced

him for one offense only. Saucedo neither alleges any violation of

his constitutional rights by the district court’s action, nor

explains how the court violated this provision. Therefore, this

challenge is not cognizable under § 2255. See Vaughn, 955 F.2d at

368. Even though the district court failed to address these

sentencing issues, such omission is immaterial because Saucedo’s

allegations are not cognizable under § 2255. 
10

C. District Court’s Findings; Full and Fair Hearing

Saucedo argues that the district court erred by failing to

make the specific finding that the files and record conclusively

show that he is not entitled to the relief sought, contending that

§ 2255 requires this specific finding. Saucedo insists that he was

denied a full and fair hearing on the issues presented because the

district court could not deny him relief without reviewing

transcripts of the sentencing proceeding and arraignment, which

were not filed.

Section 2255 does not state that the court must enter such

specific finding. See § 2255. Rule 4(b) of the Rules Governing

§ 2255 Proceedings states that the court may order summary

dismissal of a motion if it "plainly appears from the face of the

motion and any annexed exhibits and the prior proceedings in the

case that the movant is not entitled to relief. . . ." This rule

does not require the specific finding that Saucedo urges. The

magistrate judge entered sufficient findings of fact and

conclusions of law in the report and recommendation adopted by the

district court. This argument has no merit. 

On the other hand, Saucedo’s argument that the district court

could not make a determination that he was not entitled to § 2255

relief without reviewing the arraignment and sentencing transcripts

may have some merit, given the discrepancy in the record discussed

above. Review of the transcripts may have been necessary to the

district court’s determination of some of Saucedo’s allegation in
11

his § 2255 motion. The district court did not need the sentencing

transcript to determine the merits of the noncognizable issues;

however, the transcripts may have been needed for a valid

determination of the ineffective-assistance-of-counsel issues.

But, inasmuch as we are remanding the ineffective-assistance-ofcounsel issues anyway, we need not here determine the merits of

this argument. Rather, we commend the question to the district

court for its reconsideration when conducting further proceedings

on remand of the other issues. 

We do not address here the government’s argument that Saucedo

waived his right to challenge his sentence under § 2255 in his plea

agreement. As the record is unclear as to which charge Saucedo was

convicted of and under which charge he was sentenced, we do not

consider this argument. The government may raise it again after

the district court provides clarification. 

AFFIRMED in part; VACATED and REMANDED in part.