United States v. Vega-Mejias , 139 F. App'x 295 ( 2005 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1413
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN RAMON VEGA-MEJIAS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.
Rafael F. Castro Lang on brief for appellant.
H.S. Garcia, United States Attorney, and Nelson Perez-Sosa,
Assistant U.S. Attorney, on brief for appellee.
July 22, 2005
Per Curiam. After pleading guilty to possessing with
intent to distribute more than one kilogram (gross weight) of
heroin in violation of 21 U.S.C. § 841(a)(1), Juan Ramon Vega-
Mejias was sentenced to 10 years' imprisonment, the statutory
mandatory minimum for that offense, 21 U.S.C. § 841(b)(1)(A)(I).
He now appeals from his conviction and sentence and, for the
reasons explained below, we affirm.
First, Vega-Mejias challenges the validity of his guilty
plea on the ground that the district court violated Rule 11 of the
Federal Rules of Criminal Procedure by not adequately advising him
of the consequences of his plea. In particular, he argues that the
district court should have advised him that his prior criminal
record rendered him ineligible for a downward departure, below the
statutory mandatory minimum, under the "safety valve" provision,
U.S.S.G. § 5C1.2; 18 U.S.C. § 3553(f). Because Vega-Mejias did not
raise his Rule 11 claim in the trial court, we review the alleged
error under the plain error standard. United States v. Vonn, 535
U.S. 55, 59, 63 (2002).
Here, no Rule 11 error occurred, much less a plain one.
At the change of plea hearing, the district court complied with its
obligation to "inform the defendant of, and determine that the
defendant understands, . . . any mandatory minimum penalty." Fed.
R. Crim. P. 11(b)(1)(I). In particular, the court explained that
by pleading guilty to the charged conduct, Vega-Mejias was
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"exposing [him]self to a statutory mandatory minimum term of
imprisonment of 10 years" and confirmed Vega-Mejias's awareness of
that mandatory minimum. The court further confirmed Vega-Mejias's
understanding that "any criminal record that [he] may have" will be
relevant to determining what his sentence should be. When asked
whether he had a criminal record, Vega-Mejias responded, "No, sir."
Given that response, which was later echoed by defense counsel, the
court understandably focused primarily on the fifth requirement of
the safety valve–-defendant's obligation to provide all information
he has about the crime--in further explaining that provision.
Next, Vega-Mejias argues that his attorney's failure to
investigate his criminal history before advising him to plead
guilty deprived him of his constitutional right to effective
assistance of counsel. That claim is also unavailing.
As we previously held in similar circumstances, "There is
no per se rule that an attorney's failure to investigate
independently his client's criminal history before advising him to
accept a plea offer is ineffective assistance. . . . [L]awyers are
entitled to rely reasonably on the explicit representations of
clients about their criminal histories." United States v. Colón-
Torres, 382 F.3d 76, 86 (1st Cir. 2004). Rather, "'a determination
of whether reliance on a client's statement of his own criminal
history constitutes deficient performance depends on the peculiar
facts and circumstances of each case.'" Id. (quoting United States
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v. Pease, 240 F.3d 938, 941-42 (11th Cir. 2001)). And as we have
often held, "'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.'" United States v. Negrón-Narváez, 403 F.3d 33, 40
(1st Cir. 2005) (quoting United States v. Mala, 7 F.3d 1058, 1063
(1st Cir. 1993)). Here, as Vega-Mejias concedes, "[t]he record is
unclear as to how much information was developed by his counsel
prior to the celebration of the change of plea hearing."
Accordingly, this argument is premature; any such ineffective
assistance claim should be brought in the district court under 28
U.S.C. § 2255.
Finally, Vega-Mejias argues that the district court erred
in imposing a 10-year mandatory minimum sentence under 21 U.S.C.
§ 841(b)(1)(A)(I), rather than a five-year mandatory minimum
sentence under 21 U.S.C. § 841(b)(1)(B)(I), because the parties
stipulated that the net weight of the heroin carried by Vega-Mejias
was 902.7 grams, less than 1 kilogram. The short answer to this
argument is that it is the gross weight–-not the net weight–-of the
heroin that controls the length of the mandatory minimum sentence.
See 21 U.S.C. § 841(b)(1)(A)(I) (establishing mandatory minimum
sentence of 10 years in a case involving "1 kilogram or more of a
mixture or substance containing a detectable amount of heroin");
Chapman v. United States, 500 U.S. 453, 464 (1991) (explaining
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rationale for use of gross rather than net weights); see also
U.S.S.G. § 2D1.1(c) (Drug Quantity Table) n.A (providing that
"[u]nless otherwise specified, the weight of a controlled substance
set forth in the [Drug Quantity] table refers to the entire weight
of any mixture or substance containing a detectable amount of the
controlled substance"). Since Vega-Mejias pled guilty to
possessing more than one kilogram (gross weight) of heroin and
failed to object to the PSR's statement that he was carrying
1,954.80 grams (gross weight) of heroin, the district court
committed no error, plain or otherwise, in imposing the mandatory
minimum 10-year sentence under 21 U.S.C. § 841(b)(1)(A)(I). For
the same reason, Vega-Mejias's trial counsel was not ineffective in
failing to make this argument below.
Accordingly, the judgment and sentence are affirmed. See
Local R. 27(c).
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