Ortiz Torres v. United States

Opinion

USCA1 Opinion

          December 6, 1994      [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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No. 93-2303

JANNETTE ORTIZ-TORRES,

                                Plaintiff, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                 Defendant, Appellee.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                    [Hon. Hector M. Laffitte, U.S. District Judge]
                                              ___________________

                                 ___________________

                                        Before

                               Torruella, Chief Judge,
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                            Selya and Cyr, Circuit Judges.
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                                 ___________________

               Jannette Ortiz-Torres on brief pro se.
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               Guillermo  Gil,  United  States  Attorney,  Jose  A. Quiles-
               ______________                              ________________
          Espinosa, Senior Litigation Counsel, and Ernesto Hernandez-Milan,
          ________                                 _______________________
          Assistant U.S. Attorney, on brief for appellee.

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Per Curiam.   Appellant challenges  the denial of a
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            motion under 28 U.S.C.   2255, seeking relief from her guilty

            plea and sentence.  Finding no error, we affirm.

                      In   December,  1987,  appellant  was  arrested  by

            customs  officials  along  with  three  travelling companions

            aboard a cruise  ship docked  in Puerto  Rico.   Each of  the

            four, who  had boarded  the ship  together in Venezuela,  was

            found to be carrying  a quantity of cocaine.   The amount  of

            cocaine  in appellant's sole  possession was  four kilograms.

            The total cocaine found  among the packages and  suitcases of

            all four  defendants was  approximately  39 kilograms  (gross

            weight).

                      Having reason  to believe that the  four defendants

            were part of the same  illegal drug smuggling enterprise, the

            government  obtained a  joint indictment  in which  they were

            charged in three  counts with aiding and abetting one another

            in  importing,  possessing,  and  possessing  with  intent to

            distribute, 34.5 kilograms of  the drug.  Pursuant to  a plea

            agreement, however, the  government dismissed the  indictment

            against  appellant in exchange for  her guilty plea  to a one

            count information  charging that she had  unlawfully imported

            four kilograms of cocaine in violation of 21 U.S.C.   952(a).

The crime to which  appellant pled guilty carries a

            mandatory minimum penalty of  five years and a maximum  of 40

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years  imprisonment.  See 21 U.S.C.   960(b)(2).  The charges
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            that  were dropped  carried a  penalty of  ten years  to life

            imprisonment.  See 21 U.S.C.    960(b)(1).  
                           ___

                      Under the Sentencing  Guidelines, appellant's  base

            offense level  is necessarily  determined by considering  all

            conduct relevant to the offense of conviction.   See U.S.S.G.
                                                             ___

              1B1.3.   The  presentence report  ["PSR"] recited that  the

            four  defendants (three women and a man) had boarded the ship

            together and that the three women's passports bore sequential

            numbers.     Based  on  information  from   the  other  women

            participants, the  government believed  that the man  was the

            head of the group, and appellant, who had shared a cabin with

            him, was  the second  most  culpable.   Accordingly, the  PSR

            recommended  a  guidelines  base  offense  level,  34,  which

            corresponded with  the total  quantity of cocaine  carried by

            all  four defendants.  See  U.S.S.G.   2D1.1.   Appellant was
                                   ___

            credited  with  a  two  level adjustment  for  acceptance  of

            responsibility, and  she  was  assigned  a  criminal  history

            category  of "I"  because, at  age twenty,  she had  no prior

            criminal record.  This  yielded a guidelines range of  121 to

            151  months imprisonment.  The court sentenced her at the low

            end  of the  recommended range,  to 121  months imprisonment.

            She did not appeal.  

                      In this motion, filed four years later, appellant's

            basic concern  is that  her plea  bargain did  not lead  to a

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lower  sentence.1     She  challenges  her   guilty  plea  as

            involuntary and unintelligent, and alleges several  errors in

            sentencing.  

                      As to  her guilty plea, appellant  alleges that her

            counsel did not inform  her, or she did not  understand, that

            the  sentencing court  could consider  the total  quantity of

            cocaine  covered  in  the  dismissed counts.    As  appellant

            perceives  it,  she  thus  netted no  benefit  from  her plea

            bargain.  

                      To succeed on a  claim of ineffective assistance in

            the context of the plea process, appellant must show both (1)

            that her  counsel's representation  fell below the  objective

            standard of reasonableness demanded  of attorneys in criminal

            cases, and  (2) that  she suffered "prejudice,"  meaning that

            there  is a  reasonable probability  that, but  for counsel's

            errors,  she  would not  have  pled  guilty  but  would  have

            insisted on going to trial.   See Panzardi-Alvarez v.  United
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            States,  879  F.2d  975  (1st  Cir.  1989)  (citing  Hill  v.
            ______                                               ____

            Lockhart, 474 U.S. 52, 57-59 (1985)),  cert. denied, 493 U.S.
            ________                               ____________

            1082 (1990).

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            1.  Had  appellant's sentence  excluded consideration  of the
            quantity of  drugs covered by the dismissed  counts, her base
            offense  level   would  have  been   30.    Using   the  same
            determinants, i.e.,  a two level reduction  for acceptance of
            responsibility and  a criminal  history category of  "I," the
            guidelines  range would have been 78 to 97 months.  Appellant
            also  argues  that  she   should  have  received  a  downward
            adjustment for "minimal participation."  

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Appellant's proof on the first prong is inadequate.

            She offers  only her  own conclusory assertion  that she  was

            misinformed,  an  allegation that  finds  no  support in  the

            available record.   The  plea  agreement she  signed made  no

            promises, but left sentencing to "the sound discretion of the

            Court in accordance with the Sentencing Guidelines."   In her

            plea  petition she  expressed an  awareness of  the statutory

            penalty range of from five  to forty years.  While we  do not

            have the benefit  of a  plea hearing transcript,  due to  the

            loss of the reporter's  notes, appellant does not  claim that

            her alleged misunderstanding stemmed from  any misinformation

            conveyed at the plea hearing.  

                      Even  if we  assumed, however,  that appellant  was

            laboring  under   a   misapprehension  attributable   to   an

            objectively unreasonable attorney  error, her allegations are

            insufficient to  satisfy the "prejudice" prong  of the claim.

            She admits that she  committed the offense to which  she pled

            guilty,  and  offers  no  reason  to  believe  that  but  for

            counsel's allegedly erroneous advice, she would have pled not

            guilty and insisted on going to trial.  See Hill v. Lockhart,
                                                    ___ ____    ________

            474 U.S.  52, 59 (1985).   The fact, if fact it  is, that she

            reaped no benefit at sentencing from her plea agreement, does

            not  alone  suffice  to  establish  a  claim  of  ineffective

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assistance.2   See United States v. Wright, 873 F.2d 437, 441
                           ___ _____________    ______

            (1st Cir. 1989).  

                      In  short, appellant's  belated allegations  do not

            establish an  entitlement to  relief  from her  plea under   

            2255.  See  United States v. Laliberte,  25 F.3d 10,  13 (1st
                   ___  _____________    _________

            Cir.  1994)  (observing that    2255  relief  from a  plea is

            available  after sentencing  only for  "a fundamental  defect

            which  inherently  results  in  a   complete  miscarriage  of

            justice,"  or "an omission  inconsistent with the rudimentary

            demands of fair procedure").  Appellant's  challenge  to  the

            computation of her  sentence has a dual premise.   Initially,

            she appears to argue  that as a matter of  constitutional due

            process, her sentence  should have been  based solely on  the

            four  kilogram offense to which she pled guilty.  Second, she

            argues that the court misapplied the sentencing guidelines by

            attributing to her  as relevant conduct the combined total of

            39  kilograms, when allegedly  she had no  knowledge that her

            fellow  travellers  were  carrying  illegal  drugs;3  and  by

                                
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            2.  Appellant did reap a benefit from her plea for without it
            she likely would not have received the two level reduction in
            her sentence for acceptance of responsibility. 

            3.  Appellant's brief  cites the 1989 and  1992 amendments to
            U.S.S.G.   1B1.3(a).  U.S.S.G. App. C, Amends. 78 & 439 (Nov.
            1993).     The   amendments  are  "clarifying"   rather  than
            "revisionary"  and  thus may  be  consulted  for purposes  of
            interpreting  the  applicable  guideline  on  appeal,  United
                                                                   ______
            States v. LaCroix, 28 F.3d 223, 227, nn. 3-5 (1st Cir. 1994),
            ______    _______
            or on an otherwise cognizable   2255 motion, Isabel v. United
                                                         ______    ______
            States,  980 F.2d 60, 62 (1st Cir. 1992).  The amendments are
            ______
            not a substitute, however, for the required   2255 showing of

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failing  to  adjust   her  sentence  downward  for   "minimal

            participation" under U.S.S.G.   3B1.2.

                      It is well settled  that there is no constitutional

            impediment to  consideration by  the sentencing court  of all

            conduct relevant  to the  offense in  question.   Wright, 873
                                                              ______

            F.2d at 437.   "In  the case of  jointly undertaken  criminal

            activity (whether  or not  charged as a  conspiracy) relevant

            conduct  includes  all  acts  reasonably foreseeable  by  the

            defendant  and  committed  in  furtherance  of   the  jointly

            undertaken activity."  United States v. Reyes, 3 F.3d 29 (1st
                                   _____________    _____

            Cir.  1993).  We have repeatedly upheld inclusion as relevant

            conduct  of drug  transactions  that form  part  of the  same

            course of  conduct as the count of  conviction, regardless of

            whether  the transactions  were never  charged, or  initially

            charged but  dropped.  Reyes, 3 F.3d  at 31; United States v.
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            Blanco, 888  F.2d 907,  908-11 (1st  Cir. 1989); Wright,  873
            ______                                           ______

            F.2d at 441.

                      Our review of  the other sentencing  errors alleged

            in  this    2255 motion  is necessarily  limited.   Knight v.
                                                                ______

                                
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            "cause" for  appellant's earlier failure to  raise her claims
            because   they  are   not  made   substantively  retroactive.
            U.S.S.G.   1B1.10; cf.  McCleskey v. Zant, 499 U.S.  467, 487
                               ___  _________    ____
            (1991).     We  bypass   for  now,  as   unnecessary  to  our
            disposition,  further consideration  of the relevance  of the
            "accomplice  attribution"  amendments   to  which   appellant
            points, noting  however that U.S.S.G.    1B1.3(a) also covers
            acts "aided" and "abetted"  by the defendant, which  well may
            be  the  "relevant  conduct"   included  here.    U.S.S.G.   
            1B1.3(a)(1)  (1988); see  also  U.S.S.G. App.  C. Amend.  439
                                 _________
            (Nov. 1993); LaCroix, 28 F.3d at 227. 
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United  States, __ F.3d __,  1994 U.S. App.  LEXIS 29659 (1st
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            Cir.  Oct. 20, 1994).   Barring  "exceptional circumstances,"

            nonconstitutional, nonjurisdictional claims  that could  have

            been, but were not raised at the appropriate time, may not be

            asserted by collateral attack.  Knight, Id. at 7.  
                                            ______  ___

                      Appellant  defaulted  on  her claims  twice.    She

            failed  to assert  them at  the sentencing  hearing,  and she

            failed to take a direct appeal.  Indeed, the available record

            shows  that appellant interposed  no objections whatsoever to

            the PSR, thus implicitly  acquiescing in the judge's reliance

            upon  it at  sentencing.4   In the  absence of  a showing  of

            "cause"  sufficient to  excuse these  defaults as  well as  a

            showing of prejudice amounting  to a "complete miscarriage of

            justice" or  "an omission  inconsistent with  the rudimentary

            demands of fair procedure," she may not now assert them.  See
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            id.at 6(quoting Hillv. UnitedStates, 368U.S. 424,428 (1962)).
            ___             ____   ____________

                      Appellant  attempts to  excuse  the defaults  by  a

            combination   claim   of   attorney  ineffectiveness   during

            sentencing and an alleged denial of an opportunity to address

            the  court or challenge the  PSR.  A  constitutional claim of

            ineffective assistance of counsel is not normally barred by a

                                
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            4.  Because appellant  offered  no  objection  to  the  facts
            recited  in the PSR, she also waived the other alleged errors
            she  asserts:  that  there   was  insufficient  evidence   at
            sentencing to support  the "relevant conduct"  determination,
            and that the judge failed to enter specific findings on facts
            she  now perceives as  "controverted."  See  United States v.
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            Benjamin, 30 F.3d 196, 197 (1st Cir. 1994). 
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failure  to raise it on direct review.   Id. at 10.  However,
                                                     ___

            this claim was  not squarely presented nor ruled  upon below,

            so we will not address it for the first time on appeal.  

                      We   also   note  that   appellant   makes  certain

            allegations with respect to  the sentencing hearing,  without

            specifically mentioning the requirements  of Fed. R. Crim. P.

            32  or our recent decision in United States v. De Alba-Pagan,
                                          _____________    _____________

            No. 93-2018 (1st  Cir. Aug.  26, 1994).   The Rule 32  issue,

            like the  related issue of ineffectiveness  of counsel during

            sentencing, was not squarely  presented nor ruled upon below.

            Moreover,  the  record on  appeal  does  not  contain a  full

            transcript of the sentencing hearing.   For these reasons, we

            will not address this issue for the first time on appeal.

                      Affirmed.
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