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United States of America v. JUAN CARLOS BERNAL SALAZAR
Case Number: 20-6160
Judge: Robert E. Bacharach
Court: UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
Denver, CO - Criminal defense lawyer represented defendant with possession of methamphetamine with intent to distribute and possession of a firearm while being unlawfully present in the United States charges.
This case grew out of a federal conviction on drug-and-gun charges
(possession of methamphetamine with intent to distribute and possession of
a firearm while being unlawfully present in the United States). See 21
U.S.C. § 841(a)(1); 18 U.S.C. § 922(g)(5). The defendant, Mr. Juan Carlos
Bernal Salazar, moved in district court to vacate his sentence. The district
court denied the motion, and Mr. Bernal Salazar sought relief under
* This order does not constitute precedent except under the doctrines
of law of the case, res judicata, and collateral estoppel. But the order may
be cited for its persuasive vale if otherwise appropriate. See Fed. R. App.
P. 32.1(a); 10th Cir. R. 32.1(A).
United States Court of Appeals
August 2, 2021
Christopher M. Wolpert
Clerk of Court
Appellate Case: 20-6160 Document: 010110556032 Date Filed: 08/02/2021 Page: 1
Federal Rule of Criminal Procedure 52(b). The court dismissed this motion
for lack of jurisdiction, and Mr. Bernal Salazar wants to appeal both
To appeal these rulings, he needs a certificate of appealability. See
28 U.S.C. § 2253(c)(1)(B) (a certificate of appealability is necessary to
appeal the denial of a motion to vacate a sentence): United States v.
Harper, 545 F.3d 1230, 1233 (10th Cir. 2008) (a certificate of
appealability is necessary to appeal the denial of a motion that was
dismissed as an unauthorized second motion to vacate the sentence). To
obtain a certificate of appealability, Mr. Bernal Salazar must make a
“substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). Mr. Bernal Salazar has not made this showing.
1. Denial of the Motion to Vacate the Sentence
Mr. Bernal Salazar argues in part that the district court should have
granted his motion to vacate the sentence. In this motion, he alleged
ineffectiveness of his trial counsel for failure to challenge the charge of
unlawfully possessing a firearm. 18 U.S.C. §§ 922(g)(5), 924(a)(2).
According to Mr. Bernal Salazar, his attorney should have challenged the
element of possession because the firearm had been found on premises
occupied by several individuals.
For this argument, Mr. Bernal Salazar must show that reasonable
jurists could debate the correctness of the district court’s ruling. Slack v.
Appellate Case: 20-6160 Document: 010110556032 Date Filed: 08/02/2021 Page: 2
McDaniel, 529 U.S. 473, 484 (2000). In our view, the ruling was not
reasonably debatable. The attorney had nothing to challenge because Mr.
Bernal Salazar pleaded guilty rather than go to trial.
In pleading guilty, Mr. Bernal Salazar admitted possession of the
firearm. This admission is generally conclusive; we can second-guess the
admission only if Mr. Bernal Salazar presented a credible reason to
question what he had said when pleading guilty. United States v. Weeks,
653 F.3d 1188, 1205 (10th Cir. 2011). He has presented no such reason. As
a result, his attorney could not be considered ineffective for failing to
challenge the government’s proof of possession.
Mr. Bernal Salazar also points out that the criminal law prohibited
possession only if he knew that he had been illegally in the United States.
See 18 U.S.C. § 922(g)(5) (prohibiting possession of firearms by
individuals unlawfully in the United States); Rehaif v. United States, 139
S. Ct. 2191, 2200 (2019) (requiring proof that the defendant “knew he
belonged to the relevant category of persons barred from possessing a
firearm”). According to Mr. Bernal Salazar, the government could not
prove this element.
Irrespective of the government’s ability to prove this element,
however, his attorney would not have been ineffective. When Mr. Bernal
Salazar pleaded guilty, our precedent allowed a finding of guilt
irrespective of whether the defendant knew that he was in a group
Appellate Case: 20-6160 Document: 010110556032 Date Filed: 08/02/2021 Page: 3
prohibited from possessing a firearm. United States v. Games-Perez, 667
F.3d 1136, 1140 (10th Cir. 2012).
The law later changed. Rehaif, 139 S. Ct. at 2200. But an attorney is
not ineffective for failing to predict abrogation of our existing precedent.
See Bullock v. Carver, 297 F.3d 1036, 1052 (10th Cir. 2002) (“[W]e have
rejected ineffective assistance claims where a defendant ‘faults his former
counsel not for failing to find existing law, but for failing to predict future
law’ and have warned ‘that clairvoyance is not a required attribute of
effective representation.’” (citations omitted)).
2. Dismissal of the Rule 52(b) Motion
After the district court denied the motion to vacate the sentence, Mr.
Bernal Salazar moved for relief under Federal Rule of Criminal Procedure
52(b). In this motion, he again alleged that his attorney was ineffective,
adding that (1) the district court had imposed an overly harsh sentence by
miscalculating the quantity of drugs and (2) the government could not
prove possession of the firearm. The district court dismissed the motion for
lack of jurisdiction, reasoning in part that Mr. Bernal Salazar could not use
Rule 52(b) to collaterally challenge his conviction or sentence. See note 1,
To obtain a certificate of appealability on this issue, Mr. Bernal
Salazar must show that the district court’s procedural ruling was subject to
Appellate Case: 20-6160 Document: 010110556032 Date Filed: 08/02/2021 Page: 4
reasonable debate. Slack v. McDaniel, 529 U.S. 473, 484 (2000). He has
not made this showing.
Though Mr. Bernal Salazar reargues the merits of his arguments, he
does not defend the use of Rule 52(b) to collaterally challenge a conviction
or sentence.1 See United States v. Frady, 456 U.S. 152, 164, 166 (1982)
(stating that the Rule 52(b) standard for plain error does not apply in postconviction proceedings). Because Rule 52(b) is unavailable to collaterally
challenge the conviction, Mr. Bernal Salazar has not shown a reason to
question the district court’s procedural ruling.
Outcome: Because Mr. Bernal Salazar has not shown that the district court’s rulings are subject to reasonable debate, we decline to grant a certificate of appealability. With no certificate, we dismiss this matter.