IN THE UNITED STATES COURT OF APPEALS for the Fifth Circuit _________________________

No. 95-40165 (Summary Calendar) _________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CARLOS ARNULFO MARQUEZ,

Defendant-Appellant.

____________________________________________________

Appeal from United States District Court for the Southern District of Texas (L-94-CV-156(L-91-CR-23)) __________________________________________________

November 17, 1995 Before JOLLY, JONES, and STEWART, Circuit Judges.

PER CURIAM:*

Defendant, Carlos Arnulfo Marquez, appeals his sentence of 80

months imprisonment, five years of supervised relief, and $7,500

fine on the ground that he received ineffective assistance of

counsel. For the following reasons, we affirm the district court’s

sentence.

* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published. FACTS

A jury found Carlos Arnulfo Marquez guilty of possession with

intent to distribute approximately 404 pounds of marihuana in

violation of

(a)(1). The district court sentenced

Marquez to 80 months of imprisonment followed by a five-year term

of supervised release and a $7,500 fine. This court affirmed

Marquez's conviction and sentence.

Marquez then filed this

motion, alleging that

he received ineffective assistance of counsel at the trial level.

Marquez alleged that his trial attorneys were ineffective for:

1) failing to object and move for a mistrial or a curative

instruction after the Government made inflammatory comments

attacking Marquez's character; 2) refusing to allow Marquez to

testify; 3) refusing to call two potentially exculpatory witnesses;

4) failing to advise Marquez of a plea offer by the Government; and

5) failing to argue that Marquez was entitled to a "downward

departure" based on Marquez's allegation that he was a minimal

participant. Marquez also alleged that the trial court erred in

admitting perjured testimony at trial.

Following an evidentiary hearing, the district court denied

Marquez's § 2255 motion and allowed Marquez to proceed in forma

pauperis (IFP) on appeal.

DISCUSSION

Marquez argues that his trial attorneys were ineffective

for: 1) refusing to allow him to testify; 2) refusing to call

two potentially exculpatory witnesses; 3) failing to advise him

2 of a plea offer by the Government; and 4) failing to argue that

Marquez was entitled to a downward departure based on his

allegation that he was a minimal participant. Marquez also

generally contends that the district court's factual findings and

legal conclusions were not supported by the evidence presented at

the evidentiary hearing.1

A. INEFFECTIVE ASSISTANCE OF COUNSEL

This court reviews findings of fact for clear error. See

United States v. Gipson,

(5th Cir. 1993). A

factual finding will be determined to be clearly erroneous only if

it leaves the court with the definite and firm conviction that a

mistake has been made. See United States v. Scott,

(5th Cir. 1993). This court defers to the trier of fact in

resolving conflicts requiring credibility determinations. See

United States v. Samples,

(5th Cir. 1990). This

court reviews mixed questions of fact and law, such as whether

counsel rendered effective assistance of counsel, de novo. See

United States v. Faubion,

(5th Cir. 1994).

1 Marquez does not argue the alleged perjured testimony at trial and whether his trial counsel erred in failing to request a mistrial and curative jury instructions for the Government's alleged inflammatory remarks. Because Marquez has abandoned these issues, this court need not address them. See Brinkmann v. Abner,

(5th Cir. 1987). Further, in arguing in his reply brief that his trial attorneys did not call two potentially exculpatory witnesses, Marquez states that his counsel failed to investigate his case. To the extent that Marquez attempts to raise a new issue of ineffectiveness of counsel, this court bars Marquez from raising new issues in his reply brief. See United States v. Heacock,

, 259 n.18 (5th Cir. 1994) (any issue raised for the first time in a reply brief is waived).

3 Under the two-prong test enunciated in Strickland v.

Washington,

(1984), Marquez must show that

counsel's assistance was deficient and that the deficiency

prejudiced him. In evaluating the first component, judicial

scrutiny of counsel's performance must be highly deferential, and

courts must indulge in a strong presumption that counsel's conduct

falls within the wide range of reasonable professional assistance.

. Marquez must demonstrate prejudice by showing that his

attorney's errors were so serious that they rendered the

proceedings unfair or the result unreliable. See Lockhart v.

Fretwell,

(1993).

1. Refusing to allow Marquez to testify

Marquez asserts that his trial attorneys refused to allow him

to testify on his own behalf. The district court rejected

Marquez's contention that he was denied his right to testify and

found that the testimony of Pena and Almaraz was more credible and

convincing than Marquez's testimony. The district court also found

that Marquez was not forbidden or prevented from testifying, that

the attorneys merely expressed their opinions regarding Marquez

testifying, and that Marquez accepted those opinions.

The

district court found that the attorneys' advice was not

unreasonable. Id. at 77-78.

Marquez does not argue that these findings were clearly

erroneous. Instead, he argues the weight and credibility of the

evidence by contending that the testimony of his former trial

attorney, David Almaraz, was more credible than the testimony of

4 his other trial attorney, Leonel Pena, who stated that Pena

informed Marquez of his absolute right to testify at trial.

Both of Marquez's trial attorneys testified that they did not

recall Marquez asking to testify, but that they would have allowed

Marquez to testify if he had communicated a desire to do so, even

if they believed that it would not help Marquez's case. Marquez

testified that Pena refused his repeated requests to testify.

The district court chose to credit the lawyers' testimonies

over Marquez's, which is a determination that is entitled to

deference. Samples,

. Marquez does not present

anything on appeal which would make this court question such

determinations. Therefore, the district court did not clearly err

in its finding that Marquez was not denied the right to testify at

his trial, and the court did not err in its conclusion that Marquez

did not receive ineffective assistance of counsel as to this issue.

See Scott,

; Faubion,

.

2. Refusing to call two potentially exculpatory witnesses

Marquez contends that his trial attorneys were ineffective by

refusing to call his ex-wife, Rosalinda Marquez, and Mrs. Lutz, the

wife of acquaintance James Lutz, as exculpatory witnesses. Marquez

asserts that both women would have testified that he was in the

shower when his truck was being loaded with contraband and that he

never checked the load. Marquez argues the weight and credibility

of the hearing testimony by contending that Rosalinda did not

testify at the hearing as predicted.

Marquez also contends that the district court erred in

5 admitting the testimony as it was testimony regarding privileged

communication between a husband and his wife. Marquez suggests for

the first time in his reply brief that Rosalinda gave false

testimony at the hearing on the advice of Pena.

The district court found that Marquez conceded that neither

woman was present when Alfonso supposedly propositioned Marquez and

that Rosalinda testified that she was not present when any stranger

approached Marquez. The district court also determined that the

attorneys' belief that Mrs. Lutz' testimony would either be

cumulative or add nothing was a reasonable judgment. The district

court found no merit in Marquez's contention that there was

ineffective assistance of counsel in not calling the two women to

testify.

Before hearing Rosalinda's testimony, Marquez's attorney at

the evidentiary hearing objected to the proposed testimony as

violating the privilege between husband and wife, considering that

Rosalinda was Marquez's husband at the time Marquez was arrested

and tried. The court overruled the objection and stated that it

did not believe that there was to be any questions regarding any

privileged communication between Marquez and Rosalinda, but whether

Rosalinda was at the meeting between Marquez and Alfonso and

whether she was willing to testify.

Rosalinda testified at the evidentiary hearing that she was

present at the truck stop with Marquez, but that she did not see

anyone approach Marquez, as she had taken the dog to the vet at the

time.

6 Marquez testified that the two women saw the man that

approached him, even though neither of the women knew what was

said. Marquez admitted that he told law enforcement officials that

Rosalinda probably did not hear the conversation. Primo Guzman,

the agent on Marquez's case, testified that Marquez informed him

that Rosalinda had no knowledge of the marihuana that was found in

the truck, and that she never saw anyone talking to him, and that

Marquez did not mention any involvement of either Mr. or Mrs. Lutz.

Both attorneys testified that Rosalinda's testimony would not

have added to the defense. Pena also testified that he did not

believe Mrs. Lutz's testimony would have added to the case, and

Almaraz stated that he did not recall Mrs. Lutz's presence in the

events.

The district court's determination that Rosalinda gave

credible testimony is entitled to deference. Samples,

. Marquez's own testimony indicates that Rosalinda was not

present during his conversation with Alfonso. Marquez's contention

regarding the district court's allowance of Rosalinda's testimony

in spite of the marital privilege fails as Rosalinda did not

testify as to any conversations she had with Marquez during her

marriage to him. Nothing in the record or presented on appeal

demonstrates that the district court clearly erred in its fact

findings or erred in its conclusion that Marquez did not receive

ineffective assistance of counsel as to this issue. See Scott,

; Faubion,

.

3. Failing to advise Marquez of a plea offer by the Government

7 Marquez contends that his trial attorneys did not advise him

of a Government plea agreement offer which would have had him serve

only five years.2 The Government asserts that the record

affirmatively reflects that counsel advised Marquez of the plea

offer and that Marquez rejected it.

The district court found that Marquez knew that he could

either plead guilty with a recommended 60-month sentence or he

could go to trial and take his chances. The court further found

that Marquez maintained his innocence and opted to go to trial.

The district court determined that Marquez's trial attorneys

did not render deficient performance in this area.

Almaraz testified that he related to Marquez that the

Government was willing to plea bargain to 60 months, the mandatory

minimum sentence, and that he advised Marquez that if he went to

trial and was found guilty, Marquez would probably be sentenced to

80 to 90 months of imprisonment. Almaraz stated that it was his

recollection that Marquez turned down the offer and wanted to go to

trial. Pena also stated that it was his advice to Marquez not to

accept a plea bargain if Marquez insisted that he was innocent.

Pena testified that Marquez never told him to plea bargain, but

that if Marquez had, Pena would have done so.

Marquez testified that he informed Almaraz that the Government

2 Marquez raised, but did not argue, the plea-agreement issue in his appellate brief. Normally, such an unargued issue would be considered abandoned. Brinkmann. However, the Government addressed the issue in its brief, and Marquez responded to the Government's argument in his reply brief. Therefore, the court may address the issue.

8 had already offered Marquez a 60-month plea bargain. Marquez also

testified that if he had been informed that he was not going to do

less than five years, he would have taken the 60-month offer.

However, Marquez admitted that he never said he wanted to take the

Government's offer and that, when Pena stated that it would be

better to go to trial, Marquez told him to go ahead because Marquez

believed in his own innocence.

Marquez's own testimony demonstrates that he knew of the plea

bargain offer, but that he wanted to go to trial because he

believed in his innocence. Marquez has not shown that the district

court clearly erred in finding that Marquez knew about the plea

agreement and yet decided to go to trial. See Scott,

. This evidence also supports the district court's conclusion

that Marquez's attorneys were not deficient in this respect.

Faubion,

. This issue is without merit.

4. Failing to argue that Marquez was entitled to a "downward departure" based on Marquez's allegation that he was a minimal participant

Marquez argues that his trial attorneys were ineffective by

failing to argue at sentencing that he was only a minimal

participant, which would have resulted in Marquez's receipt of a

downward "departure." Marquez contends that the district court

erred in determining that Marquez's protestations of innocence

foreclosed consideration for an adjustment in the offense role at

sentencing. Marquez asserts that once he was convicted, "he

nevertheless enjoyed the privilege[] of seeking" an adjustment as

his status as an individual who had been recruited for a single

9 smuggling transaction involving a small amount of drugs was a

situation considered by the guidelines to be an appropriate one for

an adjustment under U.S.S.G. § 3B1.2.

In the context of noncapital sentencing, this court must

determine whether there is a probability that, but for counsel's

deficiency, the defendant's sentence would have been significantly

less harsh. United States v. Acklen,

(5th Cir.

1995).

The commentary of U.S.S.G. § 3B1.2 considers a downward

adjustment for a minimal participant would be appropriate for an

individual who was recruited as a courier for a single smuggling

transaction involving a small amount of drugs. § 3B1.2, comment.

(n. 2). Marquez cites this provision to support his argument that

his attorneys were ineffective for failing to argue that Marquez

was a minimal participant.

Although the district court considered this issue to be a

sentencing issue, which could not be raised in a § 2255 motion, the

district court also found that any argument of minimal

participation would have contradicted Marquez's contention of

innocence and that, furthermore, there was no credible evidence of

any other person involved. Therefore, the court concluded that it

would not have granted Marquez a sentence reduction under these

circumstances.

Pena testified that his memory was unclear but that he

believed that if he had not asserted that Marquez was a minimal

participant it was because Marquez totally denied any knowledge of

10 the marihuana. Neither Pena nor Almaraz ever raised the argument

that Marquez should have been entitled to an adjustment as a

minimal participant.

Marquez's assertion fails. Marquez maintained his innocence

in presentence investigation interviews and stated that he was

approached by someone who offered him $200 to transport some

unknown substance. The jury found Marquez guilty of possession of

marihuana with intent to distribute. Whether the jury believed

that Marquez was recruited by a third person or that he obtained

the marihuana himself is not reflected in the verdict. Marquez

possessed 404 pounds of marihuana, which is not a small amount.

These factors support the district court's conclusion that the

court would not have given Marquez a reduction in sentence for

minimal participation. Therefore, even if Marquez's attorneys

could be considered deficient for failing to raise this issue at

sentencing, Marquez cannot show prejudice by demonstrating that

there was a probability that, but for counsel's deficiency,

Marquez's sentence would have been significantly less harsh. See

Acklen,

.

CONCLUSION

For the foregoing reasons, we AFFIRM the sentence imposed by

the district court.

11