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USCA1 Opinion
December 6, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________
No. 93-2303
JANNETTE ORTIZ-TORRES,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge] ___________________
___________________
Before
Torruella, Chief Judge, ___________
Selya and Cyr, Circuit Judges. ______________
___________________
Jannette Ortiz-Torres on brief pro se. _____________________
Guillermo Gil, United States Attorney, Jose A. Quiles- ______________ ________________
Espinosa, Senior Litigation Counsel, and Ernesto Hernandez-Milan, ________ _______________________
Assistant U.S. Attorney, on brief for appellee.
__________________
__________________
Per Curiam. Appellant challenges the denial of a ___________
motion under 28 U.S.C. 2255, seeking relief from her guilty
plea and sentence. Finding no error, we affirm.
In December, 1987, appellant was arrested by
customs officials along with three travelling companions
aboard a cruise ship docked in Puerto Rico. Each of the
four, who had boarded the ship together in Venezuela, was
found to be carrying a quantity of cocaine. The amount of
cocaine in appellant's sole possession was four kilograms.
The total cocaine found among the packages and suitcases of
all four defendants was approximately 39 kilograms (gross
weight).
Having reason to believe that the four defendants
were part of the same illegal drug smuggling enterprise, the
government obtained a joint indictment in which they were
charged in three counts with aiding and abetting one another
in importing, possessing, and possessing with intent to
distribute, 34.5 kilograms of the drug. Pursuant to a plea
agreement, however, the government dismissed the indictment
against appellant in exchange for her guilty plea to a one
count information charging that she had unlawfully imported
four kilograms of cocaine in violation of 21 U.S.C. 952(a).
The crime to which appellant pled guilty carries a
mandatory minimum penalty of five years and a maximum of 40
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years imprisonment. See 21 U.S.C. 960(b)(2). The charges ___
that were dropped carried a penalty of ten years to life
imprisonment. See 21 U.S.C. 960(b)(1). ___
Under the Sentencing Guidelines, appellant's base
offense level is necessarily determined by considering all
conduct relevant to the offense of conviction. See U.S.S.G. ___
1B1.3. The presentence report ["PSR"] recited that the
four defendants (three women and a man) had boarded the ship
together and that the three women's passports bore sequential
numbers. Based on information from the other women
participants, the government believed that the man was the
head of the group, and appellant, who had shared a cabin with
him, was the second most culpable. Accordingly, the PSR
recommended a guidelines base offense level, 34, which
corresponded with the total quantity of cocaine carried by
all four defendants. See U.S.S.G. 2D1.1. Appellant was ___
credited with a two level adjustment for acceptance of
responsibility, and she was assigned a criminal history
category of "I" because, at age twenty, she had no prior
criminal record. This yielded a guidelines range of 121 to
151 months imprisonment. The court sentenced her at the low
end of the recommended range, to 121 months imprisonment.
She did not appeal.
In this motion, filed four years later, appellant's
basic concern is that her plea bargain did not lead to a
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lower sentence.1 She challenges her guilty plea as
involuntary and unintelligent, and alleges several errors in
sentencing.
As to her guilty plea, appellant alleges that her
counsel did not inform her, or she did not understand, that
the sentencing court could consider the total quantity of
cocaine covered in the dismissed counts. As appellant
perceives it, she thus netted no benefit from her plea
bargain.
To succeed on a claim of ineffective assistance in
the context of the plea process, appellant must show both (1)
that her counsel's representation fell below the objective
standard of reasonableness demanded of attorneys in criminal
cases, and (2) that she suffered "prejudice," meaning that
there is a reasonable probability that, but for counsel's
errors, she would not have pled guilty but would have
insisted on going to trial. See Panzardi-Alvarez v. United ___ ________________ ______
States, 879 F.2d 975 (1st Cir. 1989) (citing Hill v. ______ ____
Lockhart, 474 U.S. 52, 57-59 (1985)), cert. denied, 493 U.S. ________ ____________
1082 (1990).
____________________
1. Had appellant's sentence excluded consideration of the
quantity of drugs covered by the dismissed counts, her base
offense level would have been 30. Using the same
determinants, i.e., a two level reduction for acceptance of
responsibility and a criminal history category of "I," the
guidelines range would have been 78 to 97 months. Appellant
also argues that she should have received a downward
adjustment for "minimal participation."
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Appellant's proof on the first prong is inadequate.
She offers only her own conclusory assertion that she was
misinformed, an allegation that finds no support in the
available record. The plea agreement she signed made no
promises, but left sentencing to "the sound discretion of the
Court in accordance with the Sentencing Guidelines." In her
plea petition she expressed an awareness of the statutory
penalty range of from five to forty years. While we do not
have the benefit of a plea hearing transcript, due to the
loss of the reporter's notes, appellant does not claim that
her alleged misunderstanding stemmed from any misinformation
conveyed at the plea hearing.
Even if we assumed, however, that appellant was
laboring under a misapprehension attributable to an
objectively unreasonable attorney error, her allegations are
insufficient to satisfy the "prejudice" prong of the claim.
She admits that she committed the offense to which she pled
guilty, and offers no reason to believe that but for
counsel's allegedly erroneous advice, she would have pled not
guilty and insisted on going to trial. See Hill v. Lockhart, ___ ____ ________
474 U.S. 52, 59 (1985). The fact, if fact it is, that she
reaped no benefit at sentencing from her plea agreement, does
not alone suffice to establish a claim of ineffective
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assistance.2 See United States v. Wright, 873 F.2d 437, 441 ___ _____________ ______
(1st Cir. 1989).
In short, appellant's belated allegations do not
establish an entitlement to relief from her plea under
2255. See United States v. Laliberte, 25 F.3d 10, 13 (1st ___ _____________ _________
Cir. 1994) (observing that 2255 relief from a plea is
available after sentencing only for "a fundamental defect
which inherently results in a complete miscarriage of
justice," or "an omission inconsistent with the rudimentary
demands of fair procedure"). Appellant's challenge to the
computation of her sentence has a dual premise. Initially,
she appears to argue that as a matter of constitutional due
process, her sentence should have been based solely on the
four kilogram offense to which she pled guilty. Second, she
argues that the court misapplied the sentencing guidelines by
attributing to her as relevant conduct the combined total of
39 kilograms, when allegedly she had no knowledge that her
fellow travellers were carrying illegal drugs;3 and by
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2. Appellant did reap a benefit from her plea for without it
she likely would not have received the two level reduction in
her sentence for acceptance of responsibility.
3. Appellant's brief cites the 1989 and 1992 amendments to
U.S.S.G. 1B1.3(a). U.S.S.G. App. C, Amends. 78 & 439 (Nov.
1993). The amendments are "clarifying" rather than
"revisionary" and thus may be consulted for purposes of
interpreting the applicable guideline on appeal, United ______
States v. LaCroix, 28 F.3d 223, 227, nn. 3-5 (1st Cir. 1994), ______ _______
or on an otherwise cognizable 2255 motion, Isabel v. United ______ ______
States, 980 F.2d 60, 62 (1st Cir. 1992). The amendments are ______
not a substitute, however, for the required 2255 showing of
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failing to adjust her sentence downward for "minimal
participation" under U.S.S.G. 3B1.2.
It is well settled that there is no constitutional
impediment to consideration by the sentencing court of all
conduct relevant to the offense in question. Wright, 873 ______
F.2d at 437. "In the case of jointly undertaken criminal
activity (whether or not charged as a conspiracy) relevant
conduct includes all acts reasonably foreseeable by the
defendant and committed in furtherance of the jointly
undertaken activity." United States v. Reyes, 3 F.3d 29 (1st _____________ _____
Cir. 1993). We have repeatedly upheld inclusion as relevant
conduct of drug transactions that form part of the same
course of conduct as the count of conviction, regardless of
whether the transactions were never charged, or initially
charged but dropped. Reyes, 3 F.3d at 31; United States v. _____ _____________
Blanco, 888 F.2d 907, 908-11 (1st Cir. 1989); Wright, 873 ______ ______
F.2d at 441.
Our review of the other sentencing errors alleged
in this 2255 motion is necessarily limited. Knight v. ______
____________________
"cause" for appellant's earlier failure to raise her claims
because they are not made substantively retroactive.
U.S.S.G. 1B1.10; cf. McCleskey v. Zant, 499 U.S. 467, 487 ___ _________ ____
(1991). We bypass for now, as unnecessary to our
disposition, further consideration of the relevance of the
"accomplice attribution" amendments to which appellant
points, noting however that U.S.S.G. 1B1.3(a) also covers
acts "aided" and "abetted" by the defendant, which well may
be the "relevant conduct" included here. U.S.S.G.
1B1.3(a)(1) (1988); see also U.S.S.G. App. C. Amend. 439 _________
(Nov. 1993); LaCroix, 28 F.3d at 227. _______
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United States, __ F.3d __, 1994 U.S. App. LEXIS 29659 (1st ______________
Cir. Oct. 20, 1994). Barring "exceptional circumstances,"
nonconstitutional, nonjurisdictional claims that could have
been, but were not raised at the appropriate time, may not be
asserted by collateral attack. Knight, Id. at 7. ______ ___
Appellant defaulted on her claims twice. She
failed to assert them at the sentencing hearing, and she
failed to take a direct appeal. Indeed, the available record
shows that appellant interposed no objections whatsoever to
the PSR, thus implicitly acquiescing in the judge's reliance
upon it at sentencing.4 In the absence of a showing of
"cause" sufficient to excuse these defaults as well as a
showing of prejudice amounting to a "complete miscarriage of
justice" or "an omission inconsistent with the rudimentary
demands of fair procedure," she may not now assert them. See ___
id.at 6(quoting Hillv. UnitedStates, 368U.S. 424,428 (1962)). ___ ____ ____________
Appellant attempts to excuse the defaults by a
combination claim of attorney ineffectiveness during
sentencing and an alleged denial of an opportunity to address
the court or challenge the PSR. A constitutional claim of
ineffective assistance of counsel is not normally barred by a
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4. Because appellant offered no objection to the facts
recited in the PSR, she also waived the other alleged errors
she asserts: that there was insufficient evidence at
sentencing to support the "relevant conduct" determination,
and that the judge failed to enter specific findings on facts
she now perceives as "controverted." See United States v. ___ _____________
Benjamin, 30 F.3d 196, 197 (1st Cir. 1994). ________
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failure to raise it on direct review. Id. at 10. However, ___
this claim was not squarely presented nor ruled upon below,
so we will not address it for the first time on appeal.
We also note that appellant makes certain
allegations with respect to the sentencing hearing, without
specifically mentioning the requirements of Fed. R. Crim. P.
32 or our recent decision in United States v. De Alba-Pagan, _____________ _____________
No. 93-2018 (1st Cir. Aug. 26, 1994). The Rule 32 issue,
like the related issue of ineffectiveness of counsel during
sentencing, was not squarely presented nor ruled upon below.
Moreover, the record on appeal does not contain a full
transcript of the sentencing hearing. For these reasons, we
will not address this issue for the first time on appeal.
Affirmed. ________
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Document Info
Docket Number： 93-2303
Filed Date： 12/6/1994
Precedential Status： Precedential
Modified Date： 9/21/2015