United States v. Felix-Santos

Opinion

USCA1 Opinion

March 24, 1995        [NOT FOR PUBLICATION]
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                              _________________________

          No. 94-1723

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                            PEDRO GUILLERMO FELIX-SANTOS,

                                Defendant, Appellant.

                              _________________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                              _________________________

                    [Hon. Jose Antonio Fuste, U.S. District Judge]
                                              ___________________

                              _________________________

                                        Before

                               Torruella, Chief Judge,
                                          ___________

                            Coffin, Senior Circuit Judge,
                                    ____________________

                              and Selya, Circuit Judge.
                                         _____________

                              _________________________

               Bruce  J.  McGiverin,  by  appointment  of  the  Court,  for
               ____________________
          appellant.
               Edwin  O. Vazquez,  Assistant  United States  Attorney, with
               _________________
          whom Guillermo Gil, United States  Attorney, and Jose A.  Quiles-
               _____________                               ________________
          Espinosa, Senior Litigation Counsel, were on brief, for appellee.
          ________

                              _________________________

_________________________



SELYA,  Circuit Judge.   On  March 9,  1994, appellant,
                    SELYA,  Circuit Judge.
                            _____________

          Pedro Guillermo  Felix-Santos, pled  guilty to  four counts  of a

          nine-count indictment  charging him and other  individuals with a

          host of drug-related offenses.1   The district court subsequently

          sentenced  appellant to a 70-month prison term, to be followed by

          48 months  of supervised release.   At the  same time,  the court

          dismissed the other counts that the grand jury had lodged against

          Felix-Santos, including count 4    a count that charged  him with

          using a firearm  during and in  relation to the  commission of  a

          drug trafficking crime.  See 18 U.S.C.   924(c)(1).
                                   ___

                    Felix-Santos  appeals  his  conviction   and  sentence.

          Because his  appeal presents no  substantial, properly cognizable

          question, we summarily affirm.  See 1st Cir. R. 27.1.
                                          ___

                    Felix-Santos  advances  two  principal  assignments  of

          error.  First,  he contends  that his guilty  plea resulted  from

          trial  counsel's  ineptitude, and  that  he  should therefore  be

          permitted  to withdraw it. This contention is simply not ripe for

          consideration on direct appeal.  As we recently explained:

                    We have  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.   See, e.g., United States  v. McGill,
                             ___  ____  _____________     ______
                    952  F.2d  16,  19  (1st  Cir.  1991); United
                                                           ______
                              
          ____________________

               1The four  counts to which Felix-Santos  pled guilty charged
          him with conspiring to possess and distribute kilogram quantities
          of cocaine  in violation of 21  U.S.C.    841(a)(1)(b)(1)(B)(ii),
          846  (count  1),  and  using  telephones  on  three occasions  to
          facilitate the conspiracy  in violation of 21 U.S.C.    843(b)(c)
          and 18 U.S.C.   2 (counts 5, 6, and 8).

                                          2



States  v. Natanel,  938 F.2d  302, 309  (1st
                    ______     _______
                    Cir.  1991); cert.  denied,  112 S.  Ct.  986
                                 _____  ______
                    (1992); United States v. Hunnewell,  891 F.2d
                            _____________    _________
                    955,  956 (1st  Cir. 1989); United  States v.
                                                ______________
                    Costa, 890 F.2d 480, 482-83  (1st Cir. 1989);
                    _____
                    United  States v. Hoyos-Medina,  878 F.2d 21,
                    ______________    ____________
                    22 (1st Cir. 1989); United States  v. Carter,
                                        _____________     ______
                    815  F.2d 827,  829 (1st  Cir. 1987);  United
                                                           ______
                    States v.  Kobrosky, 711 F.2d  449, 457  (1st
                    ______     ________
                    Cir.  1983).    The  rule  has  a  prudential
                    aspect.      Since   claims  of   ineffective
                    assistance  involve a  binary analysis    the
                    defendant  must  show, first,  that counsel's
                    performance  was  constitutionally  deficient
                    and, second, that  the deficient  performance
                    prejudiced  the  defense,  see Strickland  v.
                                               ___ __________
                    Washington, 466  U.S. 668, 687 (1984)    such
                    __________
                    claims  typically  require the  resolution of
                    factual issues that  cannot efficaciously  be
                    addressed  in   the  first  instance   by  an
                    appellate  tribunal.  See  Costa, 890 F.2d at
                                          ___  _____
                    483;  Hoyos-Medina,  878  F.2d  at  22.    In
                          ____________
                    addition, the  trial judge, by  reason of his
                    familiarity with the case,  is usually in the
                    best position to  assess both the  quality of
                    the  legal  representation  afforded  to  the
                    defendant  in  the  district  court  and  the
                    impact    of    any    shortfall   in    that
                    representation.   Under  ideal circumstances,
                    the court of appeals should have the  benefit
                    of this evaluation;  elsewise, the court,  in
                    effect, may be playing blindman's buff.

          United  States v.  Mala,  7  F.3d  1058,  1063  (1st  Cir.  1993)
          ______________     ____

          (footnote omitted).

                    Appellant's   case  is   emblematic   of  the   reasons

          undergirding the rule.  The accusation that counsel blundered was

          not voiced  below; the district court  has not spoken to  it; and

          unanswered factual  questions abound.  Consequently,  it would be

          imprudent to entertain the ineffective assistance claim on direct

3



review, and we decline to do so.2

                    Felix-Santos'   remaining  contention   implicates  the

          sentencing phase.  The  lower court boosted his offense  level by

          two levels premised on  his alleged use of a  firearm in relation

          to the drug trafficking conspiracy.3   In turn, this  enhancement

          increased the guideline sentencing  range and resulted in a  more

          onerous sentence. Appellant contends that the court erred in this

          respect.  On the  record as it presently stands,  this contention

          is untenable.

                    We begin  our explanation  by noting that  the district

          court's dismissal of count 4 has little bearing on the sentencing

          enhancement.   It is firmly  settled that,  under the  sentencing

          guidelines, conduct  embodied  in  counts  that  were  originally

          charged,  but later dropped,  may nonetheless be  used to upgrade

          the  sentencing range  applicable  to the  counts of  conviction.

          See, e.g.,  United States v.  Garcia, 954  F.2d 12, 15  (1st Cir.
          ___  ____   _____________     ______

          1992);  cf. United States v. Mocciola,  891 F.2d 13, 17 (1st Cir.
                  ___ _____________    ________

          1989)  (enunciating  same  principle  in  respect to  "acquitted"

                              
          ____________________

               2To  be  sure, we  have  occasionally  undertaken review  of
          ineffective assistance claims on  direct appeal, even without the
          advantage of the district court's views.  See, e.g., Natanel, 938
                                                    ___  ____  _______
          F.2d at  309.  It is  important to note, however,  that we seldom
          travel this route unless  "the critical facts are not  in dispute
          and  the  record  is  sufficiently developed  to  allow  reasoned
          consideration of the claim."  Id.
                                        ___

               3U.S.S.G.  2D1.1(b)(1) provides  for a two-level enhancement
          of  a defendant's offense level  if a firearm  or other dangerous
          weapon was present  during the commission  of a drug  trafficking
          offense  unless the  sentencing  court finds  it  to be  "clearly
          improbable  that  the weapon  was  connected  with the  offense."
          U.S.S.G.  2D1.1, comment. (n.3).

                                          4



counts).  Thus,  the fact  that the government  moved to  dismiss

          count  4,  even  when  coupled  with  the  fact  that  the  court

          acquiesced,  did not  bar  consideration of  the conduct  charged

          therein   the use of  a firearm during and in relation  to a drug

          trafficking conspiracy   as a basis for elevating the defendant's

          offense level.

                    Appellant's  assignment of error has another dimension.

          He  asserts  that the  court lacked  a  proper factual  basis for

          applying the enhancement.   This asseveration, too, is profoundly

          flawed.    In the  first  place, appellant  acknowledges  that he

          stipulated to the applicability of the enhancement as part of his

          plea  bargaining.4   Appellant  did not  move  to set  aside  the

          stipulation, and,  therefore, the  sentencing court had  both the

          authority  and the right to  give the stipulation  full force and

          effect.   See, e.g., United  States v. Adail,  30 F.3d 1046, 1047
                    ___  ____  ______________    _____

          (8th Cir.), cert. denied, 115 S. Ct. 653 (1994); United States v.
                      _____ ______                         _____________

          McGill, 952 F.2d  16, 18  (1st Cir. 1991);  Graefenhain v.  Pabst
          ______                                      ___________     _____

          Brewing Co., 870 F.2d  1198, 1206 (7th Cir. 1989);  United States
          ___________                                         _____________

          v.  Kulp, 365 F. Supp. 747, 763  (E.D. Pa. 1973), aff'd, 497 F.2d
              ____                                          _____

          921 (3d Cir. 1974).

                    In the second place, the court had before it sufficient
                              
          ____________________

               4While this stipulation does not  appear in the written plea
          agreement, the  parties  discussed it  with  Judge Fuste  at  the
          change-of-plea hearing.  The  judge summarized the stipulation on
          the record  as providing  "that there  is going  to be a  weapons
          enhancement for  sentencing purposes."  Appellant  told the judge
          that  he  understood  the  stipulation  and was  aware  that  his
          sentence  would  "be higher  because of  the  fact that  [he was]
          carrying  a  revolver during  the  commission  of a  drug-related
          offense."

                                          5



information, apart from the stipulation, to enable it to make the

          requisite finding.  The  presentence investigation report   which

          itself  has evidentiary  effect, see  United States  v. Gonzalez-
                                           ___  _____________     _________

          Vazquez,  34 F.3d  19, 25  (1st Cir.  1994)  (explaining "[f]acts
          _______

          contained  in  a  presentence  report  ordinarily  are considered

          reliable evidence  for sentencing  purposes");  United States  v.
                                                          _____________

          Morillo,  8 F.3d  864, 872 (1st  Cir. 1993) (same)    furnished a
          _______

          basis for  the enhancement.   Moreover, Felix-Santos  admitted to

          the  court at the change-of-plea  hearing that there  was a valid

          factual predicate  for the stipulation.  This  admission is fully

          equivalent to an admission that  he, in fact, bore responsibility

          for the revolver.

                    We need go  no further.5   For the  reasons stated,  we

          affirm  appellant's conviction  and sentence,  without prejudice,

          however, to appellant's right to raise his ineffective assistance

          of counsel claims, and any other properly cognizable claims, on a

          petition for post-conviction relief filed pursuant to 28 U.S.C.  

          2255.   See, e.g., Mala, 7 F.3d at  1063.  We intimate no opinion
                  ___  ____  ____

          as to the merit or lack of merit of any such claim(s).

Affirmed.
          Affirmed.
          ________

____________________

               5We  have considered appellant's  bold-faced claims that the
          weapons  enhancement  violated  his  rights under  both  the  Due
          Process Clause and Fed. R. Crim. P.  32.  We find those claims to
          be meritless, and we reject them out of hand.

                                          6