United States v. Felix-Santos ( 1995 )


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  • USCA1 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    March 24, 1995 [NOT FOR PUBLICATION] [NOT FOR PUBLICATION]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, Circuit Judge. On March 9, 1994, appellant, SELYA, Circuit Judge. _____________

    Pedro Guillermo Felix-Santos, pled guilty to four counts of a

    nine-count indictment charging him and other individuals with a

    host of drug-related offenses.1 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 relation to the commission of a

    drug trafficking crime. See 18 U.S.C. 924(c)(1). ___

    Felix-Santos appeals his conviction and sentence.

    Because his appeal presents no substantial, properly cognizable

    question, we summarily affirm. See 1st Cir. R. 27.1. ___

    Felix-Santos advances two principal assignments of

    error. First, he contends that his guilty plea resulted from

    trial counsel's ineptitude, and that he should therefore be

    permitted 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, 7 F.3d 1058, 1063 (1st Cir. 1993) ______________ ____

    (footnote omitted).

    Appellant's case is emblematic of the reasons

    undergirding the rule. The accusation that counsel blundered was

    not voiced below; the district court has not spoken to it; and

    unanswered factual questions abound. Consequently, it would be

    imprudent to entertain the ineffective assistance claim on direct







    3












    review, and we decline to do so.2

    Felix-Santos' remaining contention implicates the

    sentencing phase. The lower court boosted his offense level by

    two levels premised on his alleged use of a firearm in relation

    to the drug trafficking conspiracy.3 In turn, this enhancement

    increased the guideline sentencing 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 settled that, under the sentencing

    guidelines, conduct embodied in counts that were originally

    charged, but later dropped, may nonetheless be used to upgrade

    the sentencing range applicable to the counts of conviction.

    See, e.g., United States v. Garcia, 954 F.2d 12, 15 (1st Cir. ___ ____ _____________ ______

    1992); cf. United States v. Mocciola, 891 F.2d 13, 17 (1st Cir. ___ _____________ ________

    1989) (enunciating same principle 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). Thus, the fact that the government moved to dismiss

    count 4, even when coupled with the fact that the court

    acquiesced, did not bar consideration of the conduct charged

    therein the use of a firearm during and in relation to a drug

    trafficking conspiracy as a basis for elevating the defendant's

    offense level.

    Appellant's assignment of error has another dimension.

    He asserts that the court lacked a proper factual basis for

    applying the enhancement. This asseveration, too, is profoundly

    flawed. In the first place, appellant acknowledges that he

    stipulated to the applicability of the enhancement as part of his

    plea bargaining.4 Appellant did not move to set aside the

    stipulation, and, therefore, the sentencing court had both the

    authority and the right to give the stipulation full force and

    effect. See, e.g., United States v. Adail, 30 F.3d 1046, 1047 ___ ____ ______________ _____

    (8th Cir.), cert. denied, 115 S. Ct. 653 (1994); United States v. _____ ______ _____________

    McGill, 952 F.2d 16, 18 (1st Cir. 1991); Graefenhain v. Pabst ______ ___________ _____

    Brewing Co., 870 F.2d 1198, 1206 (7th Cir. 1989); United States ___________ _____________

    v. Kulp, 365 F. Supp. 747, 763 (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. The presentence investigation report which

    itself has evidentiary effect, see United States v. Gonzalez- ___ _____________ _________

    Vazquez, 34 F.3d 19, 25 (1st Cir. 1994) (explaining "[f]acts _______

    contained in a presentence report ordinarily are considered

    reliable evidence for sentencing purposes"); United States v. _____________

    Morillo, 8 F.3d 864, 872 (1st Cir. 1993) (same) furnished a _______

    basis for the enhancement. Moreover, Felix-Santos admitted to

    the court at the change-of-plea hearing that there was a valid

    factual predicate for the stipulation. This admission is fully

    equivalent to an admission that 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