USCA1 Opinion
May 3, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2048
GUSTAVO ALBERTO CAMACHO CARBONO,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. District Judge]
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Before
Breyer, Chief Judge,
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Torruella and Cyr, Circuit Judges.
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Gustavo Alberto Camacho-Carbono on brief pro se.
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Daniel F. Lopez-Romo, United States Attorney, Warren
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Vazquez, Assistant United States Attorney, and Jose A. Quiles
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Espinosa, Senior Litigation Counsel, on brief for appellee.
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Per Curiam. Gustavo Alberto Camacho-Carbono
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appeals the denial of his motion to set aside, vacate, or
correct his sentence pursuant to 28 U.S.C. 2255. We affirm
the district court's decision dismissing his petition.
Appellant was found to be in possession of three
kilograms of cocaine at the Luis Munoz Marin International
Airport when his airline flight, en route from Bogota,
Colombia to Madrid, Spain, made a stopover in San Juan,
Puerto Rico. He was arrested and charged in a three count
indictment with (1) knowingly importing cocaine into the
customs territory of the United States from a place outside
thereof in violation of 21 U.S.C. 952(a); (2) possession
with intent to distribute cocaine in violation of 21 U.S.C.
841(a)(1); and (3) possession of cocaine on board an aircraft
arriving in the customs territory of the United States, which
drug was not part of the cargo entered in the manifest or
part of the official supplies of the aircraft, in violation
of 21 U.S.C. 955.
After pre-trial discovery, appellant agreed to
plead guilty to Count Three, violation of 21 U.S.C. 955, in
exchange for which the government dismissed the other two
counts. The plea agreement signed by appellant on May 16,
1989, shows that appellant then understood that his guilty
plea meant that he would be sentenced to a term of
imprisonment of not less than five nor more than forty years,
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supervised release of four years and a possible fine of up to
two million dollars. On September 5, 1989, petitioner was
sentenced to sixty-three months incarceration, four years
supervised release, and a special monetary assessment of
$50.00. No appeal was taken. The instant 2255 petition,
which we construe, in part, as an attack on his guilty plea
as not knowing and voluntary, was filed on June 10, 1992.
After consideration of the motion papers and exhibits, the
district court denied the petition for reasons stated in its
order of August 6, 1992. This appeal followed.
Appellant argues that his sentence should be set
aside because his flight was bound for Spain, not the United
States. He suggests that he was not in control of the
plane's flight path and implies that he was not aware that
the plane would stop in San Juan.
As appellant now sees it, these facts inevitably
lead to two conclusions. First, he now believes that he
could not have been lawfully convicted under the first two
counts of the indictment and should have been so informed by
either the prosecutor and/or his own counsel prior to entry
of his guilty plea to Count Three. Second, he argues that
his own lack of control over, and awareness of, the
airplane's stopover in San Juan proves that he was not
"voluntarily" in the United States and therefore not subject
to conviction under Count Three.
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Appellant's first conclusion is based on a
misapprehension of the law. See United States v. Gomez-
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Villamizar, 981 F.2d 621, 624 (1st Cir. 1992) (under 21
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U.S.C. 841(a) the government need not prove that defendant
had the intent to distribute drugs in the United States, only
possession in the United States and facts sufficient to
permit an inference of intention to distribute); United
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States v. Ocampo-Guarin, 968 F.2d 1406 (1st Cir. 1992) (it is
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not necessary to establish that the defendant was aware that
his flight would stop in the United States in order to prove
a violation of 21 U.S.C. 952(a)).
Appellant's second conclusion is also based on a
misapprehension of the law. While he "attempts to dress[] it
in jurisdictional clothing," the argument is not
distinguishable from that rejected in earlier cases. Gomez-
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Villamizar, 981 F.2d at 621; United States v. Bernal-Rojas,
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933 F.2d 97 (1st Cir. 1991). Regardless of a defendant's
control or knowledge of an aircraft's rescheduled path, so
long as the defendant made a free and voluntary choice to
board an aircraft which landed in Puerto Rico, there is no
bar to a conviction under 21 U.S.C. 955. Bernal-Rojas, 933
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F.2d at 101.1
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1. In support of his argument, appellant has appended to his
brief a July 21, 1992 decision of the Board of Immigration
Appeals ["BIA"] in his deportation case. That separate
proceeding involves different legal issues which are not
before us. Moreover, appellant misplaces reliance on the
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Appellant's final contention that he was denied the
effective assistance of counsel is belied by his own written
statements at the time, expressing satisfaction with
counsel's performance, and the district court's report of
similar statements at the "change of plea" hearing. See
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Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977) (district
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court may rely on its recollection of sentencing
proceedings). Appellant's current reconstruction of
counsel's alleged faults falls short of meeting the burden
appellant bears of demonstrating that the district court's
determination on this issue amounts to clear error. Isabel
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v. United States, 980 F.2d 60, 64 (1st Cir. 1992). He points
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to no advice by counsel that was outside "the range of
competence demanded of attorneys in criminal cases," nor any
reason to believe that counsel's choices were not plausible
options. United States v. Cronic, 466 U.S. 648, 655 (1984);
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see also Barrett v. United States, 965 F.2d 1184, 1193 & n.18
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(1st Cir. 1992) ("We may not find a deficient professional
performance in the constitutional sense unless the challenged
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BIA's mixed legal/factual conclusion that he is in this
country "involuntarily." As the cases cited in the BIA
decision show, the BIA's conclusion reflects only appellant's
status as a prisoner. It does not reflect in any way on the
legality of appellant's conviction under 21 U.S.C. 955.
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decisions were not `plausible options'.") (citation
omitted).2
For these reasons, the district court's order
dismissing the petition is affirmed.
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2. In a letter to this court dated the same day as his
brief, December 18, 1992, appellant alleges that he did not
have access to a law library from January, 1992 through
November 6, 1992. As he did not object on this basis below,
and had access to a library for purposes of his appellate
brief here, we construe his letter request for "reasonable
relief" as, in effect, asking that we read his brief
liberally. This we have done, resolving all ambiguities in
his favor.
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