United States Court of Appeals
For the First Circuit
No. 02-1155
UNITED STATES OF AMERICA,
Appellee,
v.
ELVY MARTINEZ-VARGAS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin and Cyr, Senior Circuit Judges.
Eileen F. Shapiro, by appointment of the court, on brief for
appellant.
Margaret E. Curran, United States Attorney, Donald C. Lockhart
and Mary E. Rogers, Assistant United States Attorneys, on brief for
appellee.
March 4, 2003
SELYA, Circuit Judge. Defendant-appellant Elvy Martinez-
Vargas pleaded guilty both to conspiring to possess with intent to
distribute five kilograms or more of cocaine and to a related
attempt count. See 21 U.S.C. §§ 841(a)(1), 846. He now appeals
his sentence, arguing that the district court should have credited
him for a mitigating role in the offense of conviction and that his
sentence was tainted by ineffective assistance of counsel.
Concluding, as we do, that the first claim is unavailing and the
second unripe, we affirm the appellant's sentence.
We draw the relevant facts from the change-of-plea
colloquy, the presentence investigation report (PSI Report), the
disposition hearing, and the documents of record. See United
States v. Dietz, 950 F.2d 50, 51 (1st Cir. 1992).
The events giving rise to the appellant's arrest had
their genesis in a call placed by a cooperating witness,
functioning under the auspices of the Federal Bureau of
Investigation, to the appellant's brother, José Correa.1 The
caller offered to bring five kilograms of cocaine from New York to
Rhode Island. Correa agreed to purchase the contraband, and the
parties arranged to consummate the transaction on July 16, 2001.
At the appointed time and place, an undercover officer
posed as a drug courier. Correa and the appellant approached the
1
"José Correa" is an alias assumed by Domingo Martinez. For
simplicity's sake, we shall continue to refer to him by his
pseudonym.
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officer's vehicle to take delivery of the drugs, and the trap
snapped shut. A search of their minivan turned up $15,400 in cash.
A subsequent search of Correa's residence netted an additional
$16,380 in cash.
On August 8, 2001, a federal grand jury indicted Correa
and the appellant. Both men initially proclaimed their innocence.
On November 2, 2001, Correa changed his plea. As he is not a party
to this appeal, we make no further reference to the proceedings
against him.
The district court had scheduled the case for trial on
November 6, 2001. Rather than stand trial, the appellant decided
to plead guilty. The court accepted his changed plea, continued
the matter for sentencing, and commissioned the preparation of the
PSI Report. The court specifically advised the appellant that,
when the PSI Report was ready, he would have a right to review it
with counsel and to object to it. The court emphasized that any
objections not lodged within 14 days after the PSI Report was made
available would not be considered.
The probation department completed the PSI Report on
December 19, 2001. It suggested that the court employ a base
offense level of 32, see USSG §2D1.1(c)(4), and deduct two levels
for acceptance of responsibility under USSG §3E1.1(a). Because the
appellant apparently qualified for an additional two-level decrease
under the so-called "safety valve" provision, see 18 U.S.C. §
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3553(f); see also United States v. Marquez, 280 F.3d 19, 21-22 (1st
Cir. 2002); United States v. Ortiz-Santiago, 211 F.3d 146, 150-51
(1st Cir. 2000),2 the PSI Report recommended an adjusted offense
level of 28. That offense level, together with a criminal history
category of I — the appellant had no prior criminal record —
yielded a guideline sentencing range of 78 to 97 months.
In response to the PSI Report, the appellant proffered
only a single objection. This objection focused on the drug
quantity calculation used to determine his base offense level. He
did not object either to (1) the use of a two-level adjustment,
rather than a three-level adjustment, for acceptance of
2
We explained in Ortiz-Santiago that "Congress enacted the
safety valve provision, 18 U.S.C. § 3553(f), in order to mitigate
the harsh effect of mandatory minimum sentences on certain first
offenders who played supporting roles in drug-trafficking schemes."
211 F.3d at 150. The Sentencing Commission has incorporated the
statutory text verbatim into the sentencing guidelines. See USSG
§5C1.2; see also USSG §2D1.1(b)(6) (providing that if a drug-
offender defendant meets the criteria set forth in section 5C1.2,
the sentencing court shall decrease his offense level by two
levels).
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responsibility,3 or (2) the absence of a role-in-the-offense
adjustment for minor participation.
The district court convened the disposition hearing on
January 25, 2002. The court resolved the question of drug quantity
against the appellant, and that question is not pursued on appeal.
Defense counsel then raised, for the first time, the possibility of
a role-in-the-offense adjustment under USSG §3B1.2(b) (which
provides that "[i]f the defendant was a minor participant in any
criminal activity," the sentencing court should "decrease [his
offense level] by 2 levels"). In belatedly broaching this subject,
the lawyer conceded that he had not objected within the stipulated
time frame and ascribed his failure to "writer's block." The court
responded: "If it wasn't raised . . . under the rule it is waived.
The Court made that very clear at the time the plea was accepted."
The court then added:
[I]t doesn't appear to me that there is a
great deal of basis for [a role-in-the-offense
reduction] here. According to the presentence
report, Mr. Martinez was with the co-Defendant
and both went to meet the agent and went back
3
A defendant who accepts responsibility for the offense of
conviction receives a basic two-level decrease in his offense
level. See USSG §3E1.1(a); see also United States v. Royer, 895
F.2d 28, 29 (1st Cir. 1990). Under certain circumstances, however,
a defendant who qualifies for a two-level decrease under section
3E1.1(a) may receive an additional one-level decrease if he "timely
notif[ies] authorities of his intention to enter a plea of guilty,
thereby permitting the government to avoid preparing for trial and
permitting the court to allocate its resources efficiently." USSG
§ 3E1.1(b)(2). Here, the sentencing court gave the appellant the
basic two-level reduction, but not the extra level.
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to the apartment and discussed purchasing 5
kilograms. Mr. Martinez was present at the
time.
I recognize what he said in his
statement of acceptance [of responsibility]
that he was just along for the ride, so to
speak but I am not sure if he is prepared to
testify to that or not. In any event, it is
too late to raise that objection.
Following the imposition of a 78-month incarcerative
sentence, Martinez-Vargas filed a notice of appeal. In it, he
makes two points. First, he asseverates that the sentencing court
erred in denying him a role-in-the-offense adjustment under USSG
§3B1.2(b). Second, he maintains that ineffective assistance of
counsel elongated his sentence because it deprived him not only of
the aforementioned role-in-the-offense adjustment but also of a
plenary three-level reduction for acceptance of responsibility
under USSG §3E1.1. We deal with these contentions sequentially,
using throughout the November 2001 edition of the sentencing
guidelines.
We need not tarry. Although the appellant criticizes the
district court for failing to grant a two-level downward adjustment
for his ostensibly minor role in the offense, he did not interpose
a timely objection to the PSI Report on this basis.4
4
To be sure, the appellant, in objecting to the drug quantity
calculation, did state that he "was only there as a helper to the
main player." But the appellant mentioned this datum only in
connection with an unsuccessful effort to explain why he did not
know the exact amount of drugs to be purchased. He never referred
to the role-in-the-offense guideline, nor did he develop his
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In the circumstances of this case, the absence of a
timely objection might well constitute a waiver. After all, the
Criminal Rules provide that the probation department shall prepare
the PSI Report and furnish it to the defendant, the defendant's
counsel, and the prosecutor. See Fed. R. Crim. P. 32(b)(6)(A).
Then, "within 14 days after receiving the presentence report," the
parties are to "communicate in writing to the probation officer,
and to each other," all the objections that they may have to the
"sentencing classifications" and other matters "contained in or
omitted from the presentence report." Fed. R. Crim. P.
32(b)(6)(B). Not later than seven days before the disposition
hearing, the probation officer must give the district court and the
parties a revised PSI Report, including an addendum setting forth
any unresolved sentencing objections. Fed. R. Crim. P.
32(b)(6)(C). Apart from any preserved objections, the sentencing
court may "accept the presentence report as its findings of fact"
without further inquiry or elaboration. Fed. R. Crim. P.
32(b)(6)(D).5
In the District of Rhode Island, these provisions are
reinforced by a local rule, which provides that:
"helper" argument in any meaningful way.
5
Fed. R. Crim. P. 32(b)(6) was recodified as Fed. R. Crim. P.
32(f) by an amendment effective December 1, 2002. The substance is
unchanged. For simplicity's sake, we use the designations that
were in effect on the date of the appellant's sentencing.
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Not less than 35 days prior to the date set
for sentencing, the probation officer shall
disclose the presentence investigation report
to the defendant and to counsel for the
defendant and the government. Within 14 days
thereafter, counsel shall communicate to the
probation officer any objections they may have
as to any material information, sentencing
classifications, sentencing guideline ranges,
and policy statements contained in or omitted
from the report. Such communication may be
oral or written, but the probation officer may
require that any oral objection be promptly
confirmed in writing.
D.R.I. R. 40.2(a). Further provisions in the local rules mirror
the framework of the Federal Rules of Criminal Procedure. See,
e.g., D.R.I. R. 40.2(b)-(d).
The time limits embedded in these rules serve a threefold
purpose: they promote focused and informed resolution of disputed
sentencing issues, fairness for both the government and the
defendant, and efficiency in judicial administration. Cf. United
States v. López-López, 295 F.3d 165, 169 (1st Cir. 2002)
(explaining that "time limits are no mere technicalities; they are
integral to the fair and orderly process of imposing sentence").
Thus, a party who decides to forgo a timely objection is in a poor
position to complain when the sentencing court holds him to the
easily foreseeable consequences of that decision.
Moreover, the district court was especially forthcoming
in this instance. It called the applicable time parameters to the
appellant's attention at the change-of-plea hearing, warned him no
fewer than four times of the 14-day deadline, and spelled out the
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consequences attendant to noncompliance. The appellant was,
therefore, on both actual and constructive notice that he must set
forth his specific objections to the PSI Report within the allotted
time or else forever hold his peace.
In the final analysis, however, we need not go so far as
to declare what happened here a waiver. Even were we to assume,
favorably to the appellant, that this lapse constituted a
forfeiture, rather than a waiver, that characterization would not
lead to a different result. On appeal, forfeited issues are
reviewed for plain error. United States v. Olano, 507 U.S. 725,
733-34 (1993); United States v. Rodriguez, 311 F.3d 435, 437 (1st
Cir. 2002). Under the plain error standard, an appellant must
demonstrate: "(1) that an error occurred (2) which was clear or
obvious and which not only (3) affected [his] substantial rights,
but also (4) seriously impaired the fairness, integrity, or public
reputation of judicial proceedings." United States v. Duarte, 246
F.3d 56, 60 (1st Cir. 2001). The appellant cannot clear this
hurdle.
Role-in-the-offense determinations are almost always
factbound. With respect to downward role-in-the-offense
adjustments, the defendant bears the burden of proof. United
States v. Ocasio, 914 F.2d 330, 332-33 (1st Cir. 1990). Appellate
review is highly deferential: the sentencing court's determination
of a defendant's role is reviewed only for clear error. Id. at
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333. "Thus, absent a mistake of law, battles over a defendant's
status . . . will almost always be won or lost in the district
court." United States v. Graciani, 61 F.3d 70, 75 (1st Cir. 1995).
These principles are decisive here. A minor participant
is one "who is less culpable than most other participants, but
whose role could not be described as minimal." USSG §3B1.2, cmt.
(n.5). To obtain a reduction for minor participant status, a
defendant must prove that he is both less culpable than most other
persons involved in the offense of conviction and less culpable
than most other persons convicted of comparable crimes. See Ortiz-
Santiago, 211 F.3d at 149; Ocasio, 914 F.2d at 333; see also USSG
§3B1.2, cmt. (n.5). The test is even more demanding on plain error
review; the defendant must show, in effect, that the status for
which he argues is "the only one rationally supported by the record
below." United States v. Olivier-Diaz, 13 F.3d 1, 5 (1st Cir.
1993). The appellant's claim cannot pass through this screen.
There is no credible evidence in the record to suggest
that the appellant was less culpable than the mine-run of felons
involved in similar crimes. To the contrary, he admitted during
the change-of-plea colloquy that he conspired with Correa to buy
five kilograms of cocaine; that he intended to distribute the
cocaine after it was acquired; and that he and Correa went together
to the scene of the planned transaction. His self-serving
statement that he was only to receive $300 for his efforts is not
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supported by anything in the record and conflicts with his
admissions at the change-of-plea hearing. Given this mise-en-
scène, the appellant's status argument is not the "only one
rationally supported by the record below." Id. Hence, the
sentencing court's failure, sua sponte, to grant the appellant a
role-in-the-offense reduction was not plainly erroneous.
In an effort to avoid the rigors of "plain error" review,
the appellant points out that the time parameters applicable to
objections are not inflexible. The sentencing court "[f]or good
cause shown . . . may allow a new objection to be raised at any
time before imposing sentence." Fed. R. Crim. P. 32(b)(6)(D).6
But this escape hatch is not available to the appellant. A claim
of "writer's block" hardly constitutes good cause. See generally
Pontarelli v. Stone, 930 F.2d 104, 110-11 (1st Cir. 1991)
(distinguishing "good cause" from "excusable neglect" in an
analogous context).
This leaves the appellant's ineffective assistance of
counsel claim. In it, he surmises that, but for his trial
attorney's inept performance, he would have received both a role-
6
The appellant argues that, in this case, the sentencing court
must have found good cause because it addressed the merits of the
objection. This is whistling past the graveyard. The court, in
what appears to have been an effort to assuage the lawyer's concern
over not having raised the point in a timely fashion, merely noted
the obvious weakness of the "minor participant" argument. To read
the court's comments as the functional equivalent of a finding of
good cause elevates hope over reason.
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in-the-offense reduction under USSG §3B1.2 and a full three-level
discount for acceptance of responsibility under USSG §3E1.1(a) and
(b)(2), thus ensuring a lighter sentence. In his view, this
circumstance warrants vacation of his sentence and a remand for a
new sentencing hearing. See Strickland v. Washington, 466 U.S.
668, 694 (1984) (concluding that ineffective assistance of counsel
occurs when "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would
have been different").
We decline to entertain this plaint. The law is firmly
settled in this circuit that, as a general rule, fact-specific
claims of ineffective assistance of counsel, not raised below,
cannot be aired for the first time on direct appeal. See United
States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993) (collecting
cases); 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).
Like most rules, this rule admits of certain exceptions.
See, e.g., United States v. Natanel, 938 F.2d 302, 309 (1st Cir.
1991). But those exceptions usually involve situations 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." Id. Here, however, the record is
painfully thin, and further development of the facts is essential
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to a reasoned consideration of the appellant's contentions. In
similar circumstances, we have declined to entertain ineffective
assistance claims on direct appeal. See, e.g., United States v.
Nelson-Rodriguez, ___ F.3d, ___, ___ (1st Cir. 2003) [No. 00-1402,
slip op. at 64]; United States v. Hunnewell, 891 F.2d 955, 956 (1st
Cir. 1989). Adhering to that salutary practice here, we reject the
appellant's ineffective assistance of counsel claim, without
prejudice to his right, if he so elects, to assert that claim in
the district court by means of an application for collateral
relief. See 28 U.S.C. § 2255.
Affirmed.
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