March 24, 1995 [NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]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