Gustavo Alberto Camacho Carbono v. United States

993 F.2d 1530, 1993 U.S. App. LEXIS 19769, 1993 WL 138529

• Court: Court of Appeals for the First Circuit
• Decided: May 3, 1993
• Docket: 92-2048
• Status: Unpublished

Opinion

993 F.2d 1530

NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.
Gustavo Alberto CAMACHO CARBONO, Petitioner, Appellant,
v.
UNITED STATES of America, Respondent, Appellee.

No. 92-2048.

United States Court of Appeals,
First Circuit.

May 3, 1993

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

Gustavo Alberto Camacho-Carbono on brief pro se.

Daniel F. Lopez-Romo, United States Attorney, Warren Vazquez, Assistant United States Attorney, and Jose A. Quiles Espinosa, Senior Litigation Counsel, on brief for appellee.

D.Puerto Rico

AFFIRMED.

Before Breyer, Chief Judge, Torruella and Cyr, Circuit Judges.

Per Curiam.

Gustavo Alberto Camacho-Carbono appeals the denial of his motion to set aside, vacate, or correct his sentence pursuant to 28 U.S.C. § 2255. We affirm the district court's decision dismissing his petition.

Appellant was found to be in possession of three kilograms of cocaine at the Luis Munoz Marin International Airport when his airline flight, en route from Bogota, Colombia to Madrid, Spain, made a stopover in San Juan, Puerto Rico. He was arrested and charged in a three count indictment with (1) knowingly importing cocaine into the customs territory of the United States from a place outside thereof in violation of 21 U.S.C. § 952(a); (2) possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1); and (3) possession of cocaine on board an aircraft arriving in the customs territory of the United States, which drug was not part of the cargo entered in the manifest or part of the official supplies of the aircraft, in violation of 21 U.S.C. § 955.

After pre-trial discovery, appellant agreed to plead guilty to Count Three, violation of 21 U.S.C. § 955, in exchange for which the government dismissed the other two counts. The plea agreement signed by appellant on May 16, 1989, shows that appellant then understood that his guilty plea meant that he would be sentenced to a term of imprisonment of not less than five nor more than forty years, supervised release of four years and a possible fine of up to two million dollars. On September 5, 1989, petitioner was sentenced to sixty-three months incarceration, four years supervised release, and a special monetary assessment of $50.00. No appeal was taken. The instant § 2255 petition, which we construe, in part, as an attack on his guilty plea as not knowing and voluntary, was filed on June 10, 1992. After consideration of the motion papers and exhibits, the district court denied the petition for reasons stated in its order of August 6, 1992. This appeal followed.

Appellant argues that his sentence should be set aside because his flight was bound for Spain, not the United States. He suggests that he was not in control of the plane's flight path and implies that he was not aware that the plane would stop in San Juan.

As appellant now sees it, these facts inevitably lead to two conclusions. First, he now believes that he could not have been lawfully convicted under the first two counts of the indictment and should have been so informed by either the prosecutor and/or his own counsel prior to entry of his guilty plea to Count Three. Second, he argues that his own lack of control over, and awareness of, the airplane's stopover in San Juan proves that he was not "voluntarily" in the United States and therefore not subject to conviction under Count Three.

Appellant's first conclusion is based on a misapprehension of the law. See United States v. Gomez- Villamizar, 981 F.2d 621, 624 (1st Cir. 1992) (under 21 U.S.C. § 841(a) the government need not prove that defendant had the intent to distribute drugs in the United States, only possession in the United States and facts sufficient to permit an inference of intention to distribute); United States v. Ocampo-Guarin, 968 F.2d 1406 (1st Cir. 1992) (it is not necessary to establish that the defendant was aware that his flight would stop in the United States in order to prove a violation of 21 U.S.C. § 952(a)).

Appellant's second conclusion is also based on a misapprehension of the law. While he "attempts to dress[ ] it in jurisdictional clothing," the argument is not distinguishable from that rejected in earlier cases. Gomez-Villamizar, 981 F.2d at 621; United States v. Bernal-Rojas, 933 F.2d 97 (1st Cir. 1991). Regardless of a defendant's control or knowledge of an aircraft's rescheduled path, so long as the defendant made a free and voluntary choice to board an aircraft which landed in Puerto Rico, there is no bar to a conviction under 21 U.S.C. § 955. Bernal-Rojas, 933 F.2d at 101.1

Appellant's final contention that he was denied the effective assistance of counsel is belied by his own written statements at the time, expressing satisfaction with counsel's performance, and the district court's report of similar statements at the "change of plea" hearing. See Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977) (district court may rely on its recollection of sentencing proceedings). Appellant's current reconstruction of counsel's alleged faults falls short of meeting the burden appellant bears of demonstrating that the district court's determination on this issue amounts to clear error. Isabel v. United States, 980 F.2d 60, 64 (1st Cir. 1992). He points to no advice by counsel that was outside "the range of competence demanded of attorneys in criminal cases," nor any reason to believe that counsel's choices were not plausible options. United States v. Cronic, 466 U.S. 648, 655 (1984); see also Barrett v. United States, 965 F.2d 1184, 1193 & n.18 (1st Cir. 1992) ("We may not find a deficient professional performance in the constitutional sense unless the challenged decisions were not 'plausible options'.") (citation omitted).2

For these reasons, the district court's order dismissing the petition is affirmed.

1 In support of his argument, appellant has appended to his brief a July 21, 1992 decision of the Board of Immigration Appeals ["BIA"] in his deportation case. That separate proceeding involves different legal issues which are not before us. Moreover, appellant misplaces reliance on the BIA's mixed legal/factual conclusion that he is in this country "involuntarily." As the cases cited in the BIA decision show, the BIA's conclusion reflects only appellant's status as a prisoner. It does not reflect in any way on the legality of appellant's conviction under 21 U.S.C. § 955

2 In a letter to this court dated the same day as his brief, December 18, 1992, appellant alleges that he did not have access to a law library from January, 1992 through November 6, 1992. As he did not object on this basis below, and had access to a library for purposes of his appellate brief here, we construe his letter request for "reasonable relief" as, in effect, asking that we read his brief liberally. This we have done, resolving all ambiguities in his favor