United States v. Orduno-Ramirez, No. 22-3019 (10th Cir. 2023)Annotate this Case
Defendant-appellant Omar Francisco Orduno-Ramirez pled guilty to a conspiracy drug offense. He received a below-Guidelines-range prison sentence of 144 months, which was affirmed on direct appeal. After he pled guilty, but before he was sentenced, the Kansas United States Attorney’s Office (“USAO”) obtained soundless video recordings of five meetings between Orduno-Ramirez and his attorney. Orduno-Ramirez sought postconviction relief under 28 U.S.C. § 2255, arguing the Government violated the Sixth Amendment by intruding on his meetings with counsel. The district court denied relief, holding that Shillinger v. Haworth, 70 F.3d 1132 (10th Cir. 1995) did not apply to post-plea intrusions. Instead, the court determined that Orduno-Ramirez was required to show prejudice and found he had not done so. The Tenth Circuit Court of Appeals granted a certificate of appealability and affirmed the denial of Orduno-Ramirez’s § 2255 motion. The Tenth Circuit agreed with the district court that the Shillinger per se rule did not apply. The Court affirmed because the Government showed the intrusion did not prejudice Orduno-Ramirez’s sentencing, and Orduno-Ramirez did not argue he suffered any prejudice.