United States v. Herrera , 431 F. App'x 4 ( 2011 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 10-1858
UNITED STATES OF AMERICA,
Appellee,
v.
NOEL ROSARIO-COLÓN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Boudin, Stahl and Howard,
Circuit Judges.
Carlos M. Sánchez La Costa, by Appointment of the Court, on
brief for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, Rosa
Emilia Rodriguez-Velez, United States Attorney, and Julia M.
Meconiates, Assistant United States Attorney, on brief for
appellee.
July 25, 2011
STAHL, Circuit Judge. Defendant-appellant Noel Rosario-
Colón pled guilty to aiding and abetting the impersonation of an
officer of the United States in violation of 18 U.S.C. §§ 2 and 912
(count one), interference with commerce by threats or violence in
violation of 18 U.S.C. §§ 2 and 1951 (count two), and carriage of
a firearm during a crime of violence in violation of 18 U.S.C. §§
2 and 924(c) (count three). The district court sentenced him to a
term of twenty-four months' imprisonment to be served consecutively
to an undischarged sentence that he was then serving for a prior
criminal conviction in case number 06-270 (JAG), which involved
similar offenses. Rosario-Colón appeals on the ground that his
counsel was ineffective in failing to argue that his term of
imprisonment should run concurrently, rather than consecutively, to
his undischarged sentence. We affirm the judgment below without
prejudice to Rosario-Colón's right to raise his claim of
ineffective assistance of counsel on collateral review because a
collateral proceeding brought under 28 U.S.C. § 2255, and not a
direct appeal, is usually the proper vehicle for a claim of
ineffective assistance of counsel, particularly when the
evidentiary record is insufficient to evaluate the claim. See
United States v. García-Pastrana, 584 F.3d 351, 388 (1st Cir. 2009)
(citing United States v. Genao, 281 F.3d 305, 313 (1st Cir. 2002)).
We recount the facts as stated during the change-of-plea
colloquy, the plea agreement, and the uncontested portions of the
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presentence investigation report. United States v. Ríos-Hernández,
__ F.3d __, No. 09-2545, 2011 WL 2150738, at *1 (1st Cir. June 2,
2011). On May 5, 2006, Rosario-Colón and two co-defendants dressed
in law enforcement tactical uniforms with holstered weapons and,
pretending to be federal agents, conducted a traffic stop in Puerto
Rico.1 They demanded and obtained $5000 from two Puerto Rican
citizens under the guise that the money being seized was part of a
federal money laundering investigation. At the time of the
incident, Rosario-Colón was a sergeant for the Commonwealth of
Puerto Rico Police Department.
On October 13, 2009, pursuant to a negotiated plea
agreement, Rosario-Colón pled guilty to the three charged offenses.
The plea agreement provided for a total recommended sentence of 78
months based on a sentencing guideline range of 18 - 24 months for
counts one and two and a statutorily mandated consecutive sentence
of 60 months for count three. The parties' calculations assumed a
Criminal History Category ("CHC") of I, although the agreement did
not stipulate to a CHC assessment. The agreement also reserved to
the parties the right to argue whether the sentence should run
concurrently or consecutively to the sentence imposed in case
number 06-270.
Before sentencing, the district court ordered the filing
1
The record does not indicate where in Puerto Rico the
incident occurred.
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of simultaneous memoranda of law speaking to: (1) the assignment of
criminal history points to Rosario-Colón due to his conviction in
case number 06-270; and (2) whether, in view of the plea agreement,
the sentence imposed should run concurrently or consecutively to
his prior, undischarged sentence. The government submitted a
memorandum of law that argued for a consecutive sentence, and it
subsequently filed a supplemental memorandum asserting that
Rosario-Colón should be assigned criminal history points. As noted
by the district court when it ordered the government to file the
supplemental memorandum, counsel for Rosario-Colón showed a "total
disregard" for the court's order, having failed to file a
memorandum of law that addressed either issue.
Before the district court ruled, both parties moved to
dismiss count three of the operative indictment, and the court did
so without prejudice.2 Then, after review of the government's two
submissions, the district court found that Rosario-Colón's criminal
history resulted in 3 criminal history points, a CHC of II, and a
revised advisory guideline range of 21 - 27 months. It also held
that the issuance of a concurrent or a consecutive sentence was
within its sound discretion. Upon consideration of the
government's arguments, the sentencing factors set forth in 18
2
A report and recommendation issued as to one of Rosario-
Colón's co-defendants precipitated the motions, in which it found
that the elements of count three at least partially contradicted
the elements of count two, warranting count three's dismissal.
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U.S.C. § 3553(a), and aspects related to the prior, undischarged
sentence, the court found that a fully consecutive sentence was the
most reasonable punishment.
Sentencing followed. At the hearing, counsel for
Rosario-Colón reminded the court of the dismissal of count three
and stated that he and his client agreed on the sentence
recommended by the probation office and government. The government
then requested that Rosario-Colón be sentenced to the full
guideline range of 27 months and that it run consecutively to the
undischarged sentence. Upon consideration of the guideline
calculations and sentencing factors, the district court sentenced
Rosario-Colón to 24 months as to counts one and two, to be served
concurrently with each other and consecutively with the prior
sentence.
On appeal, Rosario-Colón raises an ineffective assistance
of counsel claim based on his counsel's failure to argue for a
sentence concurrent with that in case number 06-270 despite the
plea agreement's contemplation of such argument and the district
court's order to submit a memorandum on the issue. To satisfy the
requirements of an ineffective assistance claim, a defendant must
show that: "(1) counsel's performance fell below an objective
standard of reasonableness, and (2) the deficient performance
resulted in prejudice to the applicant." West v. United States,
631 F.3d 563, 567 (1st Cir. 2011) (citing Strickland v. Washington,
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466 U.S. 668, 687 (1984)).
Rosario-Colón has not yet presented his claim to the
district court, and, consequently, it is not ripe for review. This
circuit has "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." United States v. Mala 7 F.3d 1058, 1063 (1st Cir. 1993);
see also, e.g., United States v. Rivera-Gonzalez, 626 F.3d 639,
644-45 (1st Cir. 2010); United States v. Torres-Oliveras, 583 F.3d
37, 43 (1st Cir. 2009); cf. Massaro v. United States, 538 U.S. 500(2003) (permitting ineffective assistance claims to be brought in
the first instance under § 2255).
To be sure, we have recognized an exception to this rule
"where the critical facts are not genuinely in dispute and the
record is sufficiently developed to allow reasoned consideration of
an ineffective assistance claim." United States v. Natanel, 938
F.2d 302, 309 (1st Cir. 1991); see also United States v. Wyatt, 561
F.3d 49, 52 (1st Cir. 2009) (noting exception to rule when "trial
counsel's ineffectiveness is manifestly apparent from the record").
Despite Rosario-Colón's urgings, however, this case, does not fall
within the exception. For example, from the record before us we
are left to speculate whether defense counsel's failure to argue
for a concurrent sentence was a strategic decision in view of the
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dismissal of count three or, instead, an unintentional oversight.
Further, we are not properly positioned to analyze whether any
alleged deficiency prejudiced Rosario-Colón. See Rivera-Gonzalez,
626 F.3d at 645 ("[I]t is the trial court, rather than the
appellate court, that is in the best position to assess whether
counsel's performance, if it was in fact constitutionally
deficient, resulted in prejudice to the appellant's substantial
rights, as required under Strickland." (internal marks omitted)
(quoting United States v. Ofray-Campos, 534 F.3d 1, 34 (1st Cir.
2008))).
Thus, we affirm the judgment below without prejudice to
Rosario-Colón's right to reassert his claim of ineffective
assistance of counsel in a separate proceeding brought under
28 U.S.C. § 2255.
So ordered.
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