[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 01-2606
UNITED STATES,
Appellee,
v.
OMAR DEL ROSARIO-PUENTE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Lipez, Circuit Judges.
Raymond L. Sanchez on brief for appellant.
H.S. Garcia, United States Attorney, Jorge E. Vega-Pacheco,
Assistant United States Attorney, and Nelson Perez-Sosa, Assistant
United States Attorney, on brief for appellee.
August 19, 2002
Per Curiam. Appellant pleaded guilty to possession
with intent to distribute five kilograms or more of cocaine, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 18 U.S.C
§ 2, and was sentenced to 46 months' imprisonment -- less than
half the statutory mandatory minimum. See 21 U.S.C. §
841(b)(1)(A). Despite appellant's statements at the change of
plea hearing that he was satisfied with his legal
representation, he now claims that his guilty plea was
involuntary because his attorney misadvised him to plead guilty
based on evidence that should have been suppressed and wrongly
decided to withdraw a motion to suppress that evidence.
A guilty plea may be considered unknowingly and
involuntarily entered if, in connection with the decision to
plead guilty, the defendant does not receive reasonably
effective assistance of counsel. See Hill v. Lockhart, 474
U.S. 52, 56-57 (1985). Although ineffective assistance of
counsel claims are not normally appropriate for review on
direct appeal, particularly where, as here, the claim has not
been raised before the trial court, United States v. Mala, 7
F.3d 1058, 1063 (1st Cir. 1993), we agree with the parties'
assertion that the circumstances fall within the exception for
cases in which "'the critical facts are not genuinely in
dispute and the record is sufficiently developed to allow a
reasoned consideration of an ineffective assistance claim.'"
United States v. Soldevila-Lopez, 17 F.3d 480, 485 (1st Cir.
-2-
1994) (quoting United States v. Natanel, 938 F.2d 302, 309 (1st
Cir. 1991)).
The familiar two-part test announced in Strickland v.
Washington, 466 U.S. 668 (1984), must be satisfied to
invalidate a guilty plea based on ineffective assistance of
counsel. Hill, 474 U.S. 57. Therefore, to prevail, appellant
must overcome the presumption that, under the circumstances,
trial counsel's advice to withdraw the motion to suppress and
plead guilty might be considered sound strategy. Id. at 689.
In addition, appellant must prove that counsel's conduct was
prejudicial -- i.e., that there is a reasonable probability
that, but for counsel's alleged errors, appellant would not
have pleaded guilty and would have insisted on going to trial.
Hill, 474 U.S. at 59. Accordingly, determination of the
ineffective assistance issue turns on the likelihood of success
of the withdrawn motion to suppress. After carefully reviewing
the record as well as the parties' submissions on appeal, we
conclude that appellant has failed to show that the motion to
suppress was likely to succeed. Moreover, in light of the
significantly reduced sentence appellant received, no doubt due
in part to his agreement to withdraw the motion to suppress and
plead guilty, trial counsel's advice seems eminently
reasonable.
Appellant having failed to satisfy the Strickland
test, we reject his challenge to the validity of the guilty
plea. The judgment is affirmed. See Loc. R. 27(c).
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