United States Court of Appeals
For the First Circuit
No. 08-2142
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE E. RIVERA-GONZALEZ, a/k/a Geno,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Lipez, Baldock* and Howard,
Circuit Judges.
Jedrick H. Burgos-Amador for appellant.
Germán A. Rieckehoff, Assistant United States Attorney, with
whom Rosa E. Rodríguez-Vélez, United States Attorney, and Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, were on brief, for appellee.
December 1, 2010
*
Of the Tenth Circuit, sitting by designation.
HOWARD, Circuit Judge. Appellant José E. Rivera-Gonzalez
pled guilty to conspiring to distribute cocaine in a Coamo, Puerto
Rico, housing project. Having three times moved unsuccessfully to
withdraw his plea, he now challenges his conviction and sentence,
contending that: (1) his plea was not knowing and voluntary
because he relied on a contradictory and ambiguous plea agreement;
(2) he received ineffective assistance of counsel because his
attorney failed to identify and inform him of the plea agreement's
inconsistencies; (3) the district court erred in concluding that
Rivera-Gonzalez was on probation at the time of his crime and
enhancing his sentence under section 4A1.1(d) of the Sentencing
Guidelines; and (4) his sentence was unreasonable.
Concluding that the district court did not abuse its
discretion in denying the appellant's motions to withdraw his
guilty plea, and finding no error in the court's sentencing
calculation, we affirm Rivera-Gonzalez's conviction and sentence.
We also dismiss his ineffective assistance of counsel claim as
procedurally flawed.
I. Facts
On November 9, 2005, Rivera-Gonzalez and fifteen co-
defendants were indicted for conspiring to traffic narcotics in
the Las Palmas Public Housing Project from around 1999 to 2005.
Rivera-Gonzalez was charged with conspiracy to possess with intent
-2-
to distribute and distribution of controlled substances near a
school or public housing project in violation of 21 U.S.C. §§ 841,
846 and 860.
Rivera-Gonzalez pled guilty on April 3, 2006, pursuant to
a written plea agreement. The agreement stipulated a Sentencing
Guidelines base offense level of 30 and a reduction of three levels
based on Rivera-Gonzalez's acceptance of responsibility, yielding
a guidelines sentencing range of seventy to eighty-seven months.1
The agreement specified that no further enhancements or deductions
would apply, although it expressly stated that it made no
stipulation as to the defendant's Criminal History Category.
In exchange for Rivera-Gonzalez's plea, the government
agreed to recommend the minimum sentence of seventy months or the
lower end of the guidelines and to not seek any upward adjustments
to his sentence. The agreement emphasized, however, that the
district court judge did not have to accept this recommendation and
could in fact sentence Rivera-Gonzalez up to the statutory maximum
of forty years.
The plea agreement also incorporated the government's
version of the statement of facts, which, by the terms of the
agreement, Rivera-Gonzalez acknowledged were accurate and could be
used by the sentencing judge in applying the Sentencing Guidelines
1
The plea agreement contained a Sentencing Guidelines table
that presented this calculation.
-3-
to his case. The statement specified that Rivera-Gonzalez had
participated in at least two drug distribution transactions in the
Las Palmas Housing Project and noted that Rivera-Gonzalez had
"possessed firearms in furtherance of the conspiracy." The
statement also confirmed Rivera-Gonzalez's participation in the
conspiracy from its beginning in or around 1999.2
The probation office relied on these details in the pre-
sentence investigation report (PSR) it prepared for the district
court. The PSR recommended a two-level enhancement because the
offense was committed in a protected location, U.S.S.G. §
2D1.2(a)(1), and a two-level enhancement for Rivera-Gonzalez's use
of dangerous weapons in the conspiracy, U.S.S.G. § 2D1.1(b)(1).
The report also noted that Rivera-Gonzalez was on probation during
the conspiracy and thus assigned him a Criminal History of II.3
2
The relevant text of the stipulated facts read as follows:
From on or about 1999 to November 9,
2005, the date of this Indictment,
the defendant participated in the
distribution of narcotic controlled
substances, namely, heroin and
cocaine, at the Las Palmas Public
Housing Project in Coamo, Puerto
Rico. Specifically, the defendant
was present or participated in at
least two (2) drug distribution
transactions, and also possessed
firearms in furtherance of the
conspiracy.
3
Rivera-Gonzalez was convicted of two separate state drug
offenses in 1998 and was placed on probation until May 1, 2003, for
-4-
The PSR's adjustments yielded a guidelines imprisonment range of
121 to 151 months, significantly higher than the range set forth in
Rivera-Gonzalez's plea agreement.
Both the government and Rivera-Gonzalez objected to the
proposed sentencing enhancements. In addition, Rivera-Gonzalez
filed three motions to withdraw his plea, the first two pro se and
the third with the help of his current counsel. Rivera-Gonzalez
first argued that he was heavily sedated at the time of his change-
of-plea hearing and that his trial attorney, Benjamin Ortiz, had
coerced him into signing the plea agreement. In his second pro se
motion, he contended that he did not understand the nature of the
agreement because his attorney had not read it to him or explained
its terms in Spanish. In his third motion, Rivera-Gonzalez claimed
that the government deliberately drafted a contradictory and
ambiguous plea agreement to induce him to plead guilty, and his
attorney's participation in negotiating the plea constituted
ineffective assistance of counsel.
The district court overruled the parties' objections to
the sentencing report, determining that the agreed-upon statement
of facts justified the enhancements. It also denied Rivera-
Gonzalez's motions to withdraw his plea. The court found that
Rivera-Gonzalez's statements at his change-of-plea hearing
discredited his later allegations of ignorance, and it found no
a total term of five years.
-5-
evidence that the government had acted deceitfully. Although it
agreed that the stipulated facts were "patently irreconcilable with
the sentence [the defendant] agreed [to] with the government," the
court observed that it had no reason to suspect that Ortiz did not
warn Rivera-Gonzalez of this fact. Moreover, the court noted that
the defendant had expressly acknowledged his awareness that it
could impose a harsher sentence and that such would not be a valid
basis for withdrawal of his plea.
On July 31, 2008, the court adopted the PSR's findings
and sentenced Rivera-Gonzalez to 121 months' imprisonment. This
timely appeal followed.
II. Analysis
Rivera-Gonzalez raises four issues on appeal. We address
each in turn.4
4
We note that the plea agreement that Rivera-Gonzalez signed
contained a clause whereby Rivera-Gonzalez agreed to waive his
right to appeal the judgment and sentence in his case if the
district court accepted the plea and "sentence[d] him according to
its terms and conditions." Rivera-Gonzalez argues that the waiver
is unenforceable under the three-prong test enunciated in United
States v. Teeter, 257 F.3d 14, 24–25 (1st Cir. 2001).
We need not consider the validity of the waiver, however,
because the government does not seek to enforce it. See United
States v. Carrasco-de-Jesús, 589 F.3d 22, 26 (1st Cir.
2009)("Where. . . the government's relinquishment of a known right
relates to a waiver-of-appeal provision in a plea agreement, there
is usually little reason to rescue the government from its
election.").
-6-
A. Denial of Motion to Withdraw Guilty Plea
Rivera-Gonzalez argues that the plea agreement's
contradictory and ambiguous language led him to plead guilty
without understanding the consequences of his plea, and that he
would not have pled guilty had he known that facts included with
his plea agreement would operate to enhance his sentence.
We review the decision to deny a motion to withdraw a
guilty plea for abuse of discretion. United States v. Pulido, 566
F.3d 52, 57 (1st Cir. 2009). "The trial court's subsidiary
findings of fact in connection with the plea-withdrawal motion are
reviewed only for clear error." United States v. Martinez-Molina,
64 F.3d 719, 732 (1st Cir. 1995).
Although "[a] defendant does not have an automatic right
to withdraw a guilty plea," United States v. Sousa, 468 F.3d 42, 46
(1st Cir. 2006), the court should permit the defendant's motion if
the defendant establishes a "fair and just reason" for the
withdrawal. Fed. R. Crim. P. 11(d)(2)(B). Factors to be included
in determining whether the defendant has met this burden are
whether the plea was voluntary, intelligent, knowing, and in
compliance with Rule 11; the plausibility of the proffered reason
for withdrawing the plea; the presence or absence of a claim of
innocence; the timing of the defendant's motion; and possible
prejudice to the government if the defendant is allowed to withdraw
his plea. Id.
-7-
We conclude that the district court did not abuse its
discretion by rejecting Rivera-Gonzalez's request to withdraw his
guilty plea. The plea agreement expressly stated that the district
court was not bound by the agreement's recommended sentencing range
and could in fact sentence the defendant to the maximum term of
forty years' imprisonment. Rivera-Gonzalez may not withdraw his
plea merely because of the likelihood of a higher sentence. See
United States v. Torres-Rosa, 209 F.3d 4, 9 (1st Cir. 2000)("[T]he
fact that a defendant finds himself faced with a stiffer sentence
than he had anticipated is not a fair and just reason for
abandoning a guilty plea."); United States v. Mercedes Mercedes,
428 F.3d 355, 359 (1st Cir. 2005) (observing that "[c]ases holding
to this effect are legion").
Rivera-Gonzalez lodges two arguments that he should be
able to withdraw his plea, neither of which alters our analysis.
First, he claims that he is innocent of the conduct that
prompted the district court to enhance his sentence. He argues
that he was not on probation when he joined the drug conspiracy,
that he did not traffic drugs in a protected location, and that he
did not use a weapon in connection with the offense. But the
statement of facts that Rivera-Gonzalez signed included this
conduct, and at his change of plea hearing he explicitly confirmed
that all of the facts were true. The district court did not err in
presuming the validity of these assurances. See United States v.
-8-
Torres-Rosario, 447 F.3d 61, 67 (1st Cir. 2006) (holding that a
court is "entitled to give weight to [the defendant's] assurances
at his change of plea hearing" absent a "good reason for
disregarding them"); cf. Blackledge v. Allison, 431 U.S. 63, 74
(1977)(stating that a defendant's "declarations in open court carry
a strong presumption of verity").5
Rivera-Gonzalez also argues that the plea agreement which
he signed was internally inconsistent in that the statement of
facts supported a stiffer sentence than the agreement contemplated.
Thus, he avers, his plea was not knowing and voluntary. We
disagree. As we have already noted, the plea agreement put Rivera-
Gonzalez on plain notice of his sentence exposure.
B. Ineffective Assistance of Counsel
Rivera-Gonzalez blames his first attorney, as well as
the government, for allowing him to sign the plea agreement.6
5
To the extent that Rivera-Gonzalez's real source of
discontent is that the government did not engage in "fact
bargaining" to secure his plea, it fails. While the government
could have reached such an agreement with the defendant, see United
States v. Yeje-Cabrera, 430 F.3d 1, 20–30 (1st Cir. 2005), it was
not obligated to do so.
6
To be sure, the record suggests that the government has been
Janus-faced in some of its dealings with the defendant. On the one
hand, the government, through the plea agreement, suggested that
Rivera-Gonzalez could expect a sentence within the range of seventy
to eighty-seven months. On the other, it set forth facts in the
agreement that plainly might lead the judge to impose a harsher
sentence. But we also note that the government stood by the
bargain that it had made and pressed for the agreed-upon lower
-9-
Ortiz, Rivera-Gonzalez asserts, should have known that the details
provided in the agreement's stipulated facts section would lead the
court to sentence him to a longer term than outlined by the plea
agreement itself. Rivera-Gonzalez claims that Ortiz's role in
advising him to sign the agreement constituted ineffective
assistance of counsel.
To prevail on an ineffective assistance claim, the
appellant must show that the trial attorney's representation was
deficient and that this deficient performance prejudiced the
defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984).
We generally will not address ineffective assistance
claims on direct appeal, but rather require that they be raised
collaterally. See United States v. Wyatt, 561 F.3d 49, 51 (1st
Cir.), cert. denied, 129 S.Ct. 1690 (2009); United States v. Ofray-
Campos, 534 F.3d 1, 34 (1st Cir. 2008); United States v. Hicks, 531
F.3d 49, 55 (1st Cir. 2008); United States v. Rodriguez, 457 F.3d
109, 117 (1st Cir. 2006). It is usually wiser to allow the
district court to address an ineffective assistance claim in the
first instance, because "an appellate court is ill-equipped to
handle the fact-specific inquiry that such claims often require."
Ofray-Campos, 534 F.3d at 34. Only when such scrutiny of the
factual record is unnecessary because the attorney's
ineffectiveness is "manifestly apparent from the record," Wyatt,
sentence.
-10-
561 F.3d at 52, will we consider ineffective assistance claims on
direct appeal. See id.
Rivera-Gonzalez urges us to find that his claim falls
within this narrow exception, because his former attorney's advice
to sign an "obvious contradictory and ambiguous plea agreement" was
per se incompetent. He refers us to a statement Ortiz made
regarding the plea agreement at the hearing pursuant to his motion
to withdraw as counsel:
[I]n [Rivera's] mind when he wrote -- accepted
the plea offer, in his mind there was level
27, Criminal History I, 70 months, that is
true, and that was our understanding also.
Rivera-Gonzalez asserts that this statement reveals that Ortiz's
understanding of the plea bargaining process was "simplistic and
unrealistic" and that the attorney did not understand that the
facts, as written, exposed his client to additional sentencing
enhancements.
We cannot conclude, from this one line, that Ortiz's
performance was necessarily constitutionally deficient, nor can we
glean any further information from the record about the plea
bargaining process, such as the expectations or strategies the
parties brought to the negotiations. Even if we could determine
from the record before us that Ortiz's performance was deficient,
we could not appropriately analyze whether the errors prejudiced
either Rivera-Gonzalez's defense or his ability to obtain a more
favorable arrangement. See Ofray-Campos, 534 F.3d at 34 (noting
-11-
that "it is the trial court, rather than the appellate court, that
is in the best position to assess whether [counsel's performance],
if it was in fact constitutionally deficient, resulted in prejudice
to [the appellant's] substantial rights, as required under
Strickland"). We therefore dismiss Rivera-Gonzalez's ineffective
assistance claim without prejudice to his reasserting them in a
collateral proceeding under 28 U.S.C. § 2255.
C. Sentencing Calculation
Rivera-Gonzalez next attacks the calculation of his
sentence. Specifically, he challenges the district court's
enhancement of his sentence under section 4A1.1(d) based on the
court's determination that he was on probation when he joined the
conspiracy.
Section 4A1.1(d) instructs the district court to add two
points to the defendant's Criminal History Category if the
defendant was on probation at the time of the crime. Rivera-
Gonzalez acknowledges that he was on probation from May 1, 1998 to
May 1, 2003. He argues, however, that the district court could not
confirm that the drug conspiracy began before May 1, 2003 and thus
could not conclude that Rivera-Gonzalez was on probation when he
committed the offense.
Although we review a sentencing court's interpretation
and application of the sentencing guidelines de novo, United States
-12-
v. Goodhue, 486 F.3d 52, 55 (1st Cir. 2007), where the defendant
challenges the court's finding of facts, as here, our review is
only for clear error. See United States v. Villar, 586 F.3d 76,
88 (1st Cir. 2009).
Rivera-Gonzalez contends that the district court, in
applying section 4A1.1(d), relied on information in the PSR from a
cooperating witness that he engaged in activities in furtherance of
the conspiracy as early as March 16, 2001. He maintains that this
information was unreliable and insists that the district court
should have held an evidentiary hearing to assess the reliability
of the witness's claim.7
We need not consider the reliability of the witness's
account, however. As we have noted above in dismissing his
attempts to withdraw his guilty plea, the defendant himself
admitted that his participation in the conspiracy began "from on or
around 1999."8
7
Rivera-Gonzalez also challenges the district court's
enhancement of his sentence for possession of a dangerous weapon
under section 2D1.1(b)(1). He argues that he did not, as the PSR
alleged, arm himself with a .38 caliber revolver in furtherance of
the conspiracy. This argument is easily disposed of, however,
because the district court need not have relied on the PSR's
findings in determining that the sentencing enhancement was
appropriate. As we have already noted, Rivera-Gonzalez admitted in
the plea agreement's statement of facts that he "possessed firearms
in furtherance of the conspiracy," and the district court did not
abuse its discretion in relying on this admission.
8
We also reject the defendant's argument that the district
court abused its discretion by refusing to order the Department of
Correction to produce documentation certifying that Rivera-Gonzalez
-13-
Faced with the incontrovertible weight of his own words,
Rivera-Gonzalez seeks to lessen their import to achieve his desired
result. He contends that the phrase "from on or about 1999" is so
vague that the district court could not rely on its accuracy.
"Based on such language," he asserts, "any effort to determine
whether [Rivera-Gonzalez's] participation began before or after the
date of May 1, 2003 would be speculative."
We disagree. "From on or about 1999" may be approximate,
but it is not so nebulous as to suggest that the conspiracy could
have started at any time at all. The use of the phrase "on or
about," as another circuit has noted, "merely serves to prevent any
dickering over the small technicality of an exact date." United
States v. McCown, 711 F.2d 1441, 1450 (9th Cir. 1983). The Ninth
Circuit, in interpreting the phrase "from on or about June 17,
1981," found the words "on or about" opened the time frame by at
most one or two days. Id. It would be unreasonable for us to
agree with the defendant that "on or about 1999" might mean only
"after May 1, 2003."
had finished his probation sentence satisfactorily. For 4A1.1(d)
to apply, it mattered only that Rivera-Gonzalez was on probation at
some time during the charged conspiracy. See U.S. Sentencing
Guidelines Manual §4A1.1, cmt. n.4 (2007). ("Two points are added
if the defendant committed any part of the instant offense . . .
while under any criminal sentence.")(emphasis added). We agree
with the district court that whether Rivera-Gonzalez in fact
satisfactorily completed his probation was not critical to
determining when he joined the charged conspiracy.
-14-
D. Reasonableness of the Sentence
Rivera-Gonzalez argues that even if the district court
correctly applied section 4A1.1(d), his 121-month sentence is
unreasonable. He claims the sentence is unfair because he received
a longer sentence than any of his co-conspirators, including, in
particular, the conspiracy's leaders. He also argues that the
district court did not adequately explain the reasons for his
sentence as required by 18 U.S.C. § 3553.
Our review of the district court's sentence for
reasonableness is a two-step process. We first review the sentence
for procedural errors,9 then "turn to the substantive
reasonableness of the sentence actually imposed and review the
sentence for abuse of discretion." Politano, 522 F.3d at 73.
1. Adequacy of the Explanation
We first address Rivera-Gonzalez's procedural claim
thatthe district court failed to adequately explain the reasons for
his sentence. Rivera-Gonzalez raises this claim for the first time
on appeal, and so our review is for plain error. See United States
v. Mangual-Garcia, 505 F.3d 1, 15 (1st Cir. 2007).
9
Such errors include "failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors,
selecting a sentence based on erroneous facts, or failing to
adequately explain a chosen sentence -- including an explanation
for any deviation from the Guidelines range." United States v.
Politano, 522 F.3d 69, 72 (1st Cir. 2008) (quoting Gall v. United
States, 552 U.S. 38, 51 (2007)).
-15-
Section 3553(c) requires the sentencing judge "to state
in open court the reasons for its imposition of a particular
sentence." Where, as here, the defendant's guideline sentencing
range exceeds twenty-four months, the judge must also state "the
reason for imposing a sentence at a particular point within the
[Guidelines Sentencing] range." 18 U.S.C. § 3553(c)(1). The
court's explanation is adequate for purposes of § 3553(c)(1) if it
"specifically identif[ies] some discrete aspect of the defendant's
behavior and link[s] that aspect to the goals of sentencing."
United States v. Vazquez-Molina, 389 F.3d 54, 58 (1st Cir. 2004),
vacated on other grounds, 544 U.S. 946 (2005). Although the
court's explanation must reflect "that the court considered the
relevant § 3553(a) factors, the court need not address these
factors one by one, in some sort of rote incantation when
explicating its sentencing decision." United States v. Almenas,
553 F.3d 27, 36 (1st Cir. 2009) (internal quotation marks and
citations omitted).
The district court's explanation of Rivera-Gonzalez's
sentence was sufficient to satisfy § 3553(a)'s requirements. After
making the guidelines calculations, but before pronouncing its
ultimate sentence, the district court stated the following:
Before the Court is a 42-year-old defendant
with a high school education, no dependents.
He has a history of drug use and prior
criminal record. The defendant was actively
involved in the drug trafficking conspiracy
charged in the indictment.
-16-
The guidelines, although advisory, adequately
considers [sic] the nature of the offense, the
history and characteristics of this defendant
and his criminal record.
Taking into consideration all of the factors
that are set forth if [sic] 18 U.S. Code
Section 3553, as well as the parties'
sentencing recommendation set forth in their
plea agreement, the Court finds that the lower
end of the applicable guideline range is a
sentence sufficient but not greater than
necessary to meet the sentencing objectives of
punishment and deterrence in this case.
The district court described the defendant's background, including
his educational history and prior drug use, and referred to his
criminal record. See 18 U.S.C. § 3553(a)(1)(directing the court to
consider the "history and characteristics of the defendant" in
imposing a sentence). The court added that a sentence at the lower
end of the applicable guideline range would address the goals of
punishment and deterrence, two of the objectives identified in 18
U.S.C. § 3553(a)(2). This explanation, though brief, was more
detailed than others we have upheld under a plain error standard.
See, e.g., Vasquez-Molina, 389 F.3d at 59 (upholding district
court's explanation as adequate, where district court said only
that "since the defendant is [a] second offender, a sentence in the
middle of the guideline range will serve the objectives of
punishment and deterrence").
Finding no procedural error, we shift our focus to the
defendant's substantive claim.
-17-
2. Substantive Reasonableness of the Sentence
Rivera-Gonzalez claims that his sentence was unreasonable
because at least eleven of his co-defendants, including the leaders
of the drug conspiracy, were sentenced to lighter sentences than he
was, ranging from forty-six to 108 months. In particular, he notes
that Joel Moreno-Espada, the organization's leader, was sentenced
to just seventy months' imprisonment.
We afford the district court "wide discretion" in
sentencing decisions. United States v. Marceau, 554 F.3d 24, 33
(1st Cir. 2009). Ultimately, "the linchpin of a reasonable
sentence is a plausible sentencing rationale and a defensible
result." United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008).
Section 3553(a)(6) directs the district court to consider
"the need to avoid unwarranted sentencing disparities among
defendants with similar records who have been found guilty of
similar conduct." This section is "primarily aimed at national
disparities, rather than those between co-defendants," Marceau, 554
F.3d at 33, and we have observed that a sentence within the
Guidelines range, as was Rivera-Gonzalez's, "is likely to reflect
the national standard." United States v. Mueffelman, 470 F.3d 33,
40–41 (1st Cir. 2006). Unless two "identically situated
defendants" receive different sentences from the same judge, which
may be a reason for concern, United States v. Wallace, 573 F.3d 82,
97 (1st Cir. 2009), our general rule of thumb is that a "defendant
-18-
is not entitled to a lighter sentence merely because his co-
defendants received lighter sentences." Id.
Rivera-Gonzalez and his co-defendants were not
identically situated, as our close review of each defendant's pre-
sentence investigation report confirms. Some of his co-defendants
were first-time offenders,10 while others were convicted of
possessing a smaller quantity of drugs. Still others received
point reductions for the minor role that they played in the
offense.11 We thus conclude with little difficulty that "the
district court properly exercised its informed discretion, while
offering a plausible rationale and reaching a defensible result."
Marceau, 554 F.3d at 34 (internal quotation marks omitted)(internal
citations omitted). In short, we are satisfied that Rivera-
Gonzalez's sentence was reasonable.
10
In particular, Moreno Espada, whose sentence the defendant
highlighted, was a first-time offender.
11
In claiming that it was unreasonable for the district court
to sentence him to a longer sentence than those of the conspiracy's
leaders, Rivera-Gonzalez relies exclusively on a concurring opinion
in United States v. Cirilo-Muñoz, 504 F.3d 106 (1st Cir. 2007). In
that case, Judge Torruella observed that the scant evidence showed,
at most, only that the defendant was an accessory after the fact,
not an aider and abettor. Id. at 121–22 (Torruella, J.,
concurring). Here, we have no such concerns. Rivera-Gonzalez was
not merely an accessory after the fact to the drug conspiracy, but,
by his own admission, an active participant.
-19-
III. Conclusion
For the reasons provided above, we affirm the conviction
and sentence and dismiss without prejudice Rivera-Gonzalez's
ineffective assistance claim.
AFFIRMED
-20-