United States v. Felix-Santos, 1st Cir. (1995)
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Scribd Government DocsUSCA1 Opinion
March 24, 1995
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_________________________
No. 94-1723
UNITED STATES OF AMERICA,
Appellee,
v.
PEDRO GUILLERMO FELIX-SANTOS,
Defendant, Appellant.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
_________________________
[Hon. Jose Antonio Fuste, U.S. District Judge]
___________________
_________________________
Before
Torruella, Chief Judge,
___________
Coffin, Senior Circuit Judge,
____________________
and Selya, Circuit Judge.
_____________
_________________________
Bruce J. McGiverin, by appointment of the Court, for
____________________
appellant.
Edwin O. Vazquez, Assistant United States Attorney, with
_________________
whom Guillermo Gil, United States Attorney, and Jose A. Quiles_____________
________________
Espinosa, Senior Litigation Counsel, were on brief, for appellee.
________
_________________________
_________________________
SELYA,
SELYA,
Pedro Guillermo
Circuit Judge.
Circuit Judge.
_____________
On
Felix-Santos, pled
nine-count indictment
March 9,
guilty to
charging him and other
host of drug-related offenses.1
1994, appellant,
four counts
of a
individuals with a
The district court subsequently
sentenced
appellant to a 70-month prison term, to be followed by
48 months
of supervised release.
At the
same time,
the court
dismissed the other counts that the grand jury had lodged against
Felix-Santos, including count 4
a count that charged
him with
using a firearm
during and in
drug trafficking crime.
Felix-Santos
Because his
See 18 U.S.C.
___
appeals
his
appeal presents no
question, we summarily affirm.
Felix-Santos
error.
First,
trial
counsel's
permitted
relation to the
924(c)(1).
conviction
and
sentence.
substantial, properly cognizable
See 1st Cir. R. 27.1.
___
advances
he contends
commission of
two
principal
that his guilty
ineptitude, and
that
he
assignments
plea resulted
should therefore
of
from
be
to withdraw it. This contention is simply not ripe for
consideration on direct appeal.
As we recently explained:
We have held with a regularity bordering on
the monotonous that fact-specific claims of
ineffective assistance
cannot make their
debut
on
direct
review
of
criminal
convictions, but, rather, must originally be
presented to, and acted upon by, the trial
court.
See, e.g., United States v. McGill,
___ ____ _____________
______
952 F.2d 16, 19 (1st Cir. 1991); United
______
____________________
1The four counts to which Felix-Santos pled guilty charged
him with conspiring to possess and distribute kilogram quantities
of cocaine in violation of 21 U.S.C.
841(a)(1)(b)(1)(B)(ii),
846 (count 1), and using telephones on three occasions to
facilitate the conspiracy in violation of 21 U.S.C.
843(b)(c)
and 18 U.S.C.
2 (counts 5, 6, and 8).
2
States v. Natanel, 938 F.2d 302, 309 (1st
______
_______
Cir. 1991); cert. denied, 112 S. Ct. 986
_____ ______
(1992); United States v. Hunnewell, 891 F.2d
_____________
_________
955, 956 (1st Cir. 1989); United States v.
______________
Costa, 890 F.2d 480, 482-83 (1st Cir. 1989);
_____
United States v. Hoyos-Medina, 878 F.2d 21,
______________
____________
22 (1st Cir. 1989); United States v. Carter,
_____________
______
815 F.2d 827, 829 (1st Cir. 1987); United
______
States v. Kobrosky, 711 F.2d 449, 457 (1st
______
________
Cir. 1983).
The rule has a prudential
aspect.
Since
claims of
ineffective
assistance involve a binary analysis
the
defendant must show, first, that counsel's
performance was constitutionally deficient
and, second, that the deficient performance
prejudiced the defense, see Strickland v.
___ __________
Washington, 466 U.S. 668, 687 (1984)
such
__________
claims typically require the resolution of
factual issues that cannot efficaciously be
addressed in
the first instance
by an
appellate tribunal. See Costa, 890 F.2d at
___ _____
483; Hoyos-Medina, 878 F.2d at 22.
In
____________
addition, the trial judge, by reason of his
familiarity with the case, is usually in the
best position to assess both the quality of
the legal representation afforded to the
defendant in the district court and the
impact
of
any
shortfall
in
that
representation.
Under ideal circumstances,
the court of appeals should have the benefit
of this evaluation; elsewise, the court, in
effect, may be playing blindman's buff.
United States v.
______________
Mala,
____
F.3d
1058,
1063
(1st
Cir.
1993)
(footnote omitted).
Appellant's
undergirding the rule.
not voiced
case
is
emblematic
the
reasons
The accusation that counsel blundered was
below; the district court
unanswered factual
of
questions abound.
has not spoken to
Consequently,
it; and
it would be
imprudent to entertain the ineffective assistance claim on direct
review, and we decline to do so.2
Felix-Santos'
sentencing phase.
The
two levels premised on
remaining
contention
implicates
lower court boosted his offense
his alleged use of a
to the drug trafficking conspiracy.3
increased the guideline sentencing
the
level by
firearm in relation
In turn, this
enhancement
range and resulted in a
more
onerous sentence. Appellant contends that the court erred in this
respect.
On the
record as it presently stands,
this contention
is untenable.
We begin
our explanation
by noting that
the district
court's dismissal of count 4 has little bearing on the sentencing
enhancement.
It is firmly
guidelines, conduct
charged,
the
See, e.g.,
___ ____
1989)
embodied
but later dropped,
sentencing range
1992);
settled that,
in
to the
Garcia, 954
______
cf. United States v. Mocciola,
___ _____________
________
(enunciating
same
that
may nonetheless be
applicable
United States v.
_____________
counts
under the
principle
were
sentencing
originally
used to upgrade
counts of
F.2d 12, 15
conviction.
(1st Cir.
891 F.2d 13, 17 (1st Cir.
in
respect to
"acquitted"
____________________
2To be sure, we have occasionally undertaken review of
ineffective assistance claims on direct appeal, even without the
advantage of the district court's views. See, e.g., Natanel, 938
___ ____ _______
F.2d at 309. It is important to note, however, that we seldom
travel this route unless "the critical facts are not in dispute
and the record is sufficiently developed to allow reasoned
consideration of the claim." Id.
___
3U.S.S.G. 2D1.1(b)(1) provides for a two-level enhancement
of a defendant's offense level if a firearm or other dangerous
weapon was present during the commission of a drug trafficking
offense unless the sentencing court finds it to be "clearly
improbable that the weapon was connected with the offense."
U.S.S.G. 2D1.1, comment. (n.3).
4
counts).
count
Thus,
4,
even
acquiesced,
therein
the fact
when
that the government
coupled
did not
bar
the use of
with
the
moved to
fact
consideration of
that
the
the conduct
a firearm during and in relation
trafficking conspiracy
dismiss
court
charged
to a drug
as a basis for elevating the defendant's
offense level.
Appellant's
He
asserts
that the
assignment of error has another dimension.
court lacked
applying the enhancement.
flawed.
In the
first
proper factual
basis for
This asseveration, too, is profoundly
place, appellant
acknowledges
that he
stipulated to the applicability of the enhancement as part of his
plea
bargaining.4
Appellant
stipulation, and,
authority
effect.
did not
therefore, the
and the right to
move
to set
sentencing court had
give the stipulation
See, e.g., United States v. Adail,
___ ____ ______________
_____
aside
the
both the
full force and
30 F.3d 1046, 1047
(8th Cir.), cert. denied, 115 S. Ct. 653 (1994); United States v.
_____ ______
_____________
McGill, 952 F.2d
______
16, 18
Brewing Co., 870 F.2d
___________
v.
(1st Cir. 1991);
Graefenhain v.
___________
1198, 1206 (7th Cir. 1989);
Kulp, 365 F. Supp. 747, 763
____
Pabst
_____
United States
_____________
(E.D. Pa. 1973), aff'd, 497 F.2d
_____
921 (3d Cir. 1974).
In the second place, the court had before it sufficient
____________________
4While this stipulation does not appear in the written plea
agreement, the parties discussed it with Judge Fuste at the
change-of-plea hearing. The judge summarized the stipulation on
the record as providing "that there is going to be a weapons
enhancement for sentencing purposes." Appellant told the judge
that he understood the stipulation and was aware that his
sentence would "be higher because of the fact that [he was]
carrying a revolver during the commission of a drug-related
offense."
5
information, apart from the stipulation, to enable it to make the
requisite finding.
itself
has evidentiary
Vazquez,
_______
contained
34 F.3d
in
reliable evidence
Morillo,
_______
basis for
the
The
8 F.3d
presentence investigation report
effect, see
___
19, 25
(1st Cir.
presentence
864, 872 (1st
v. Gonzalez_________
(explaining "[f]acts
ordinarily
purposes");
are considered
United States
_____________
v.
Cir. 1993) (same)
furnished a
Moreover, Felix-Santos
admitted to
court at the change-of-plea
factual predicate
1994)
report
for sentencing
the enhancement.
United States
_____________
which
hearing that there
for the stipulation.
equivalent to an admission that
This
was a valid
admission is fully
he, in fact, bore responsibility
for the revolver.
We need go
no further.5
For the
reasons stated,
we
affirm
appellant's conviction
and sentence,
without prejudice,
however, to appellant's right to raise his ineffective assistance
of counsel claims, and any other properly cognizable claims, on a
petition for post-conviction relief filed pursuant to 28 U.S.C.
2255.
See, e.g., Mala, 7 F.3d at
___ ____ ____
1063.
We intimate no opinion
as to the merit or lack of merit of any such claim(s).
Affirmed.
Affirmed.
________
____________________
5We have considered appellant's bold-faced claims that the
weapons enhancement violated his rights under both the Due
Process Clause and Fed. R. Crim. P. 32. We find those claims to
be meritless, and we reject them out of hand.
6
