United States v. Carlos Aguiar

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued February 8, 2018 Decided July 3, 2018 No. 15-3027 UNITED STATES OF AMERICA, APPELLEE v. CARLOS AGUIAR, ALSO KNOWN AS LOS, APPELLANT Appeal from the United States District Court for the District of Columbia (No. 1:04-cr-00355-3) Erica J. Hashimoto, appointed by the court, argued the cause for appellant. On the briefs were Steven H. Goldblatt, appointed by the court, Amit R. Vora, Supervisory Attorney, and Caleb Redmond and Joseph Flanagan, Student Counsel. Carlos Aguilar, pro se, filed the brief for appellant. James A. Ewing, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jessie K. Liu, U.S. Attorney, and Elizabeth Trosman, T. Anthony Quinn, and Nicholas P. Coleman, Assistant U.S. Attorneys. Suzanne G. Curt, Assistant U.S. Attorney, entered an appearance. 2 Before: ROGERS, GRIFFITH, and SRINIVASAN, Circuit Judges. Opinion for the Court filed by Circuit Judge ROGERS. Opinion, dissenting in part, filed by Circuit Judge GRIFFITH. ROGERS, Circuit Judge: This is an appeal from the denial of a collateral attack pursuant to 28 U.S.C. § 2255 on a conviction by a jury of crimes relating to a series of armed bank robberies. Carlos Aguiar contends the district court erred in denying the motion because his trial and appellate counsel failed to object to the closure of voir dire, in violation of his Sixth Amendment right to a public trial, and because trial counsel failed to explain the sentencing consequences under 18 U.S.C. § 924(c) of rejecting the government’s plea offer and going to trial, in violation of his Sixth Amendment right to the effective assistance of counsel. The first contention fails in light of Weaver v. Massachusetts, 137 S. Ct. 1899 (2017), because Aguiar has not shown prejudicial error from the voir dire closure. The second contention regarding the plea offer requires a remand because “the motion and the files and records of the case” do not “conclusively show” Aguiar is “entitled to no relief.” 28 U.S.C. § 2255(b). I. In superseding indictments, Aguiar and five co-defendants were charged with RICO and armed bank robbery conspiracies, two armed bank robberies, three counts of unlawful possession of a firearm by a convicted felon, and two counts of possession or use of a fully automatic assault weapon in connection with a crime of violence in violation of 18 U.S.C. § 924(c)(1)(B)(ii). Earlier Aguiar had rejected the government’s offer of a plea to 3 three counts: RICO conspiracy, felon in possession of a firearm, and § 924(c)(1)(B)(ii), with a likely total sentence of between 47 and 51 years, including a mandatory 30 years on the § 924(c) count. A jury found Aguiar guilty of all charges except possession or use of fully automatic assault weapons, instead finding him guilty of possession or use of semi- automatic weapons in violation of §§ 924(c)(1)(B)(i) & (C)(i). He was sentenced to an aggregate term of 60 years’ imprisonment, including mandatory consecutive terms of 10 and 25 years’ imprisonment for ...

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