DeMarco v. United States

Opinion

USCA1 Opinion

September 23, 1993    [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ___________________

No. 93-1277

LEOPOLD DEMARCO,

                                Plaintiff, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                 Defendant, Appellee.

__________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

[Hon. Raymond J. Pettine, Senior U.S. District Judge]
                                          __________________________

                                 ___________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                          Selya and Boudin, Circuit Judges.
                                            ______________

                                 ___________________

               Leopold Demarco on brief pro se.
               _______________
               Edwin J.  Gale, United  States Attorney, Margaret  E. Curran
               ______________                           ___________________
          and  Lawrence D.  Gaynor, Assistant  United States  Attorneys, on
               ___________________
          brief for appellee.

__________________

                                  __________________

Per Curiam.  Petitioner  challenges the denial of a
                      __________

            motion under 28 U.S.C.   2255 to vacate, set aside or correct

            his  sentence.1     He   alleges  that  the   district  court

            erroneously enhanced his  sentence two levels  for possession

            of a firearm during the offense.  He also alleges ineffective

            assistance of counsel in the failure to object on this ground

            and to take a  direct appeal from  the sentence imposed.   We

            affirm the district court's disposition.  

                      Petitioner  pleaded guilty to  a cluster of charges

            stemming  from his  involvement  in a  large scale  marijuana

            distribution  operation.2    In  return  for  his  plea,  the

            government  agreed  to  recommend  dismissal of  two  of  the

            charges,3 and  imposition of a sentence at the low end of the

____________________

            1.  Due to  a tangled  procedural history, summarized  in the
            district court's decision of February 3, 1993, this appeal is
            taken from  an order  denying petitioner's motion  for relief
            from judgment.  That  motion, in turn, sought reconsideration
            of the court's May 12, 1992 order denying petitioner's motion
            under 28 U.S.C.   2255.  

            2.  The indictment  charged a conspiracy among  defendant and
            six  others   to  distribute  and  possess   with  intent  to
            distribute 1,000 kilograms or more of marijuana, in violation
            of 21 U.S.C.    846.  In  addition to that  charge, defendant
            pleaded guilty  to the  following charges in  the indictment:
            possession with  intent to  distribute the same  quantity, 21
            U.S.C.     841(a)(1),  841(b)(1)(4);  using a  communications
            facility  for  the  commission  of a  narcotics  offense,  21
            U.S.C.   843(b);  maintaining  a  place for  the  purpose  of
            distributing marijuana, 21 U.S.C.   856.  

            3.  The charges dismissed by agreement were:  possession of a
            firearm  during and in relation to  a drug trafficking crime,
            18  U.S.C.    924(c),  and  operating  a continuing  criminal
            enterprise, 21 U.S.C.   848.

                                         -2-

guideline  offense  level  chosen by  the  court.   The  plea

            agreement recited the parties' understanding that defendant's

            Criminal  History Category  was  I, and  that the  applicable

            guideline  offense  level  would  be  either  34,  35  or 36,

            depending on the district court's ruling.   

                      The  presentence  report calculated  the applicable

            offense level at  36 as follows:  (1)  the base offense level

            was 32; (2)  a two  level increase was  assessed pursuant  to

            U.S.S.G.    2D1.1(b)(1) for  possessing a firearm  during the

            offense;  (3)  a  four  level  increase  was  assessed  under

            U.S.S.G.    3B1.1  for  being an  organizer  or leader  of  a

            criminal activity  that involved  five or more  participants;

            and  (4)  petitioner  was  awarded a  two-level  decrease  in

            offense level for acceptance  of responsibility pursuant to  

            3E1.1.

                      Petitioner   objected  only   to  the   four  level

            enhancement   for  being   an  organizer   or  leader.     He

            successfully renewed this contention as his sole objection at

            the sentencing hearing.   He  testified at  length about  his

            role in  the conspiracy, the government  presented a rebuttal

            witness on point,  and there were vigorous  arguments by both

            sides.    The   district  court   agreed  that   petitioner's

            involvement qualified only for  a two level enhancement under

              3B1.1(c),  not a four  level enhancement.   At petitioner's

            urging,  the court  ruled that  the proper  guideline offense

-3-

level  was  34.4   Accepting  the plea  agreement,  the court

            sentenced petitioner to 151 months, the low end of the lowest

            guideline  offense level  conceded  to be  applicable by  the

            parties.

                      Petitioner did  not take  a timely appeal  from the

            sentence.  Instead, he  filed a   2255 motion one  year later

            challenging  the sentence on the  ground that the court erred

            in  imposing  the  two  level increase  for  possession  of a

            firearm.   He argued  that there  was  an insufficient  nexus

            between  the  loaded  firearm  found  in  his  home  and  the

            narcotics offenses to which  he pleaded guilty.  In  reply to

            the government's contention that this claim of error had been

____________________

            4.  The  following exchange between  petitioner's counsel and
            the court occurred in petitioner's presence at the hearing:

                      Counsel:   [A]ll we  are asking  you to  do is
                                 ___________________________________
                 sentence this defendant at the low end of level 34.
                 ___________________________________________________
                 He has no quarrel with  that at all.  He agrees  he
                 ___________________________________________________
                 should be sentenced at 34.
                 __________________________

                      The Court:  You want me to sentence him to 151
                 months?  That's what it is 151 to 188 months.

                      Counsel:  That's what I want, your Honor, yes.

            Sentencing Hearing of  March 1,  1991, Tr. at  79, ll.  10-17
            (emphasis added). 

                 Petitioner  had an opportunity  to directly  address the
            court  after  this  exchange,  as  well  as  after the  court
            indicated  its  likely  ruling.    Petitioner  indicated   no
            objection.  Tr. at 86-23 to 90-14.

                                         -4-

forfeited by a double procedural  default, petitioner claimed

            ineffective assistance by his counsel.5

                      We agree with the district court's conclusions.  On

            appeal,  the  fact-finder's  determination   that  petitioner

            received effective  assistance of counsel at sentencing, "may

            be overturned  only  for  clear  error."   Isabel  v.  United
                                                       ______      ______

            States, 980 F.2d 60, 64 (1st Cir. 1992).  "[P]etitioner bears
            ______

            a  very heavy  burden  on an  ineffective assistance  claim."

            Lema  v. United States,  987 F.2d 48  (1st Cir.  1993).  "The
            ____     _____________

            court must  not only find that  defense counsel's performance

            was deficient, but that it was so prejudicial as to undermine

            confidence in  the outcome."   Strickland v.  Washington, 466
                                           __________     __________

            U.S. 668,  689 (1984).    And petitioner  must "overcome  the

            presumption that,  under  the circumstances,  the  challenged

            action   `might  be   considered   sound  trial   strategy.'"

            Strickland, 466 U.S. at 689 (citation omitted).     
            __________

                      Applying  these  standards,  petitioner's  argument

            falls far short of  the "clear error" threshold.   Petitioner

            offered no cogent argument  or evidence to overcome  the very

____________________

            5.  These  were  the  only  issues  presented  below  and  in
            petitioner's  main  brief.    In his  reply  brief,  however,
            petitioner seems  to  also argue  error  in the  point  level
            increase assigned by the district court under   3B1.1(c), the
            very matter upon which petitioner prevailed at the sentencing
            hearing.   Reply Br. at 6,  7.  Aside from  the reply brief's
            apparent  misstatement of the  record (the  ultimate increase
            was two levels, not four as  claimed in the brief), we do not
            consider  alleged  errors  assigned  for the  first  time  on
            appeal. 

                                         -5-

strong presumption  that counsel's failure to  object on this

            ground was a  deliberate strategic decision.  The  loaded gun

            had been found in petitioner's home along with a large amount

            of cash  ($266,230.00), drug  paraphernalia,  and a  suitcase

            with marijuana  residue.  There was  substantial testimony at

            the  hearing,  including  petitioner's  own  testimony,  that

            petitioner's home had  served as a routine base of operations

            for  the conspiracy.  Even  after the base  of operations was

            moved elsewhere, the presentence report and  testimony showed

            that  petitioner's  home  continued   to  be  used  for  drug

            distribution activities,  and  the cash  represented  profits

            from the illegal scheme.6  

                      In similar cases we have held that the base offense

            level  should be  increased by  two levels  under U.S.S.G.   

            2D1.1(b)(1) unless it is  "clearly improbable that the weapon

            and  the   offense  were   connected."    United   States  v.
                                                      _______________

            Corcimiglia, 967 F.2d 724, 726 (1st Cir. 1992); United States
            ___________                                     _____________

____________________

            6.  In his  reply brief petitioner  now asserts there  was no
            evidence to connect  his home,  and the money  found, to  the
            illegal  drug  activities.    These   assertions  are  flatly
            contradicted by his own  testimony at the hearing as  well as
            that  of the  government's  witness.   Sentencing Hearing  of
            March 1, 1991 at 12-20 to 13-9; 13-19 to 14-6;  21, ll. 9-12;
            45 to 46; 52; 55; 59; 68-69; see also,  Presentence Report at
                                         ________
            10.   We also  reject as  meritless petitioner's  reply brief
            argument  that  dismissal  of  the  charge  against  him  for
            possession of a weapon in violation of 18 U.S.C.   924(c) was
            inconsistent with  enhancement of his sentence under U.S.S.G.
               2D1.1(b)(1).  It is well settled that conduct not formally
            charged may  enter into the decision  on sentencing guideline
            range. See generally United States v. Jackson, 1993 U.S. App.
                   _____________ _____________    _______
            LEXIS 22019, at *8 (1st Cir. Aug. 1, 1993) (citing cases).  

                                         -6-

v.  McDowell,  918 F.2d  1004, 1011  (1st Cir.  1990) (citing
                ________

            cases).   Given  the admission  that illegal  drug activities

            occurred in the very  place where the gun was  found, counsel

            could not have reasonably expected to succeed on an  argument

            that  it was "improbable" that  the gun was  connected to the

            illegal  activity.   The  failure to  object  on that  basis,

            especially  in light  of the  court's express  inclination to

            sentence petitioner in  accordance with  the plea  agreement,

            was  undoubtedly  deliberate, and,  as  the  court held,  not

            prejudicial to petitioner.

                      As  to counsel's  failure to  take a  direct appeal

            from  the  sentence,  we  have held  that  where  a  criminal

            defendant  loses  his  right   to  a  direct  appeal  through

            dereliction  of his counsel, he  is entitled to  a new appeal

            without first showing a meritorious appellate issue.  Bonneau
                                                                  _______

            v.  United States, 961 F.2d 17 (1st Cir. 1992); United States
                _____________                               _____________

            v.  Tajeddini, 945 F.2d  458, 466-67  (1st Cir.  1991), cert.
                _________                                           _____

            denied, 112 S.  Ct. 3009  (1992).  However,  a defendant  who
            ______

            voluntarily  forfeits  his right  to a  direct appeal  is not

            entitled to  assign error  for the first  time on  collateral

            review without showing both cause  for the default and actual

            prejudice resulting  from the assigned error.   United States
                                                            _____________

            v. Frady, 456 U.S.  152 (1982); see also Tajeddini,  945 F.2d
               _____                        ________ _________

            at 468 (remanding case to district court to determine whether

            petitioner had voluntarily foregone his right to appeal).    

-7-

Petitioner's excuse for failing to  take a direct

            appeal  is that  he didn't know  he had the  right to appeal.

            First  he  blames  his  lack of  knowledge  on  his  counsel,

            claiming  that counsel failed to  advise him of  his right to

            appeal.   However, the  letter he  offered from  his attorney

            does  not support this claim.7   Second, petitioner claims he

            was in "shock" and  under the influence of medication  at the

            time of sentencing.  For this reason,  petitioner alleges, he

            could  not understand the  judge's plain  statement informing

            petitioner of his right to appeal the sentence.  Petitioner's

            "shock" claim, however, is belied by his own lengthy, concise

            and  responsive testimony  at the  hearing.   And the  record

            shows  no mention  of petitioner's use  of medication  at the

            time of sentencing.           While  the  district court  did

            not  expressly  rule  on  the voluntariness  of  petitioner's

            failure to  appeal, the  record before us  is plain.   As the

            letter from his counsel affirms,  there was no incentive  for

____________________

            7.  The letter from petitioner's attorney dated July 8, 1991,
            does not state that petitioner was uninformed.  At best it is
            equivocal on that point  

                      I  did not file a Notice of Appeal since it is
                 my  recollection that it would  not be in your best
                 interest to raise  an issue (1) that  you could not
                 win;  and (2)  that might  open the  door to  a re-
                 calculation of the entire sentence.  

                      If,  however,  your recollection  differs, you
                 could file a 2255 alleging ineffective assistance. 

            Petitioner's Traverse to Government's Objection, Exhibit A.

-8-

petitioner to take  a direct appeal  because he had  obtained

            all  the relief he sought  at the sentencing  hearing.  Aside

            from  his  transparently thin  claim  of  lack of  knowledge,

            petitioner offered no evidence below to rebut the presumption

            of a  voluntary waiver.   He asserts  no other cause  for his

            procedural default, nor any prejudice from the alleged error.

                      Accordingly, we affirm the judgment below.    
                                      ______

-9-