Professional Documents
Culture Documents
DEC 16 2002
PATRICK FISHER
Clerk
No. 02-4084
(D. Utah)
(D.C. Nos. 2:00-CV-850-B,
2:97-CR-67-B)
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
*
The district court did not act upon Mr. Arreolas application for a
certificate of appealability within thirty days of filing of his notice of appeal. In
this circumstance, the application is deemed denied by the district court. United
States v. Kennedy, 225 F.3d 1187, 1193, n.3 (10th Cir. 2000), cert. denied, 532
U.S. 943 (2001).
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charge. At sentencing, the trial judge simply observed Mr. Arreola had earlier
rejected a ten year plea offer which the court had encouraged him to accept when
he had the chance to do so. If error at all, it was harmless. See Fed. R. Crim. P.
11(h). For the same reason, we see no basis for recusal of the trial judge from the
2255 proceedings, as Mr. Arreola had requested under 28 U.S.C. 455(a)
(requiring disqualification where impartiality might reasonably be questioned).
Second, Mr. Arreola, who received an enhanced sentence due to a prior
felony drug conviction, asserts error because counsel did not object to the district
courts failure to comply with 21 U.S.C. 851(b). 4 Notably, Mr. Arreola testified
under oath to his prior felony drug conviction. The failure of the trial court to
elicit the same information, as required by statute, is harmless error. U.S. v.
Lopez-Gutierrez, 83 F.3d 1235, 1246-47 (10th Cir. 1996). The failure to advise
as to foreclosure of the right to attack the prior conviction is of no moment when
Mr. Arreola presents no grounds for such an attack. Id.
4
21 U.S.C. 851(b).
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Other than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490.
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