United States v. Kupa

616 F. App'x 33

• Court: Court of Appeals for the Second Circuit
• Decided: October 6, 2015
• Docket: No. 13-3275
• Status: Published

Opinion

SUMMARY ORDER

Lulzim Kupa appeals from the judgment of the United States District Court for the Eastern District of New York (Gleeson, /.), sentencing Kupa to a 132-month term of imprisonment. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

On appeal, Kupa asserts a single claim of ineffective assistance of counsel. This Circuit has a “baseline aversion to resolving ineffectiveness claims on direct review.” United States v. Morris, 350 F.3d 32, 39 (2d Cir.2003) (internal quotation marks and citation omitted). See Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003) (“[I]n most cases a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective assistance.”).

Here, however, it is not difficult to adjudicate Kupa’s claim on appeal. It is clear from the record that Kupa’s claim fails on the merits because Kupa cannot prevail on the performance prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), especially because “[jjudicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689, 104 S.Ct. 2052. Kupa’s only argument is that counsel failed to argue that Kupa should not be deemed a career offender. But counsel did so argue: “I, as I indicated, wholeheartedly agree ... that he’s not a career offender.” A. 128; see also A. 131-33. Indeed, the government accused Kupa’s counsel of breaching the plea agreement precisely because he made this argument. Government Appendix 29 (“[T]he government claims that we have breached the plea agreement by arguing that defendant is not a career offender.”).

For the foregoing reasons, and finding no merit in Kupa’s other arguments, we hereby AFFIRM the judgment of the district court.