U.S. Court of Appeals for the Ninth Circuit, 2011

United States v. Vince Cruz

United States v. Vince Cruz
U.S. Court of Appeals for the Ninth Circuit · Decided March 14, 2011 · Farris, Leavy, Bybee
420 F. App'x 780

United States v. Vince Cruz

Opinion

MEMORANDUM **

Vince Luis Hocog Cruz appeals from his jury-trial conviction and 130-month sentence imposed for possession of methamphetamine hydrochloride with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Cruz contends that counsel was ineffective for failing to object to hearsay statements introduced at trial. We decline to address this claim on direct appeal as the record is insufficiently developed, and Cruz’s legal representation was not so inadequate that it obviously denied the Sixth Amendment right to counsel. See United States v. Ross, 206 F.3d 896, 900 (9th Cir. 2000).

Cruz also contends that the district court erred because its Guidelines calculation was based upon the erroneous conclusion that the jury determined that he was responsible for 31.9 grams of methamphetamine hydrochloride. Although the district court erred by instructing the jury that the government was not required to prove the amount or quantity of methamphetamine hydrochloride; the error was harmless beyond a reasonable doubt because the overwhelming and uncontested evidence indicated that Cruz was in possession of 31.9 grams of the substance. See United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1197-98 (9th Cir. 2000) (en banc). Accordingly, the district court did not procedurally err by improperly calculating the Guidelines range. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

AFFIRMED.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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