United States Court of Appeals
For the First Circuit
No. 14-1030
WAYNE VARGAS-DE JESÚS,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Barron and Stahl, Circuit Judges,
and Sorokin,* District Judge.
Derege B. Demissie, with whom Demissie & Church was on brief,
for appellant.
Susan Z. Jorgensen, Assistant United States Attorney, with
whom Mainon A. Schwartz, Assistant United States Attorney, Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-
Sosa, Assistant United States Attorney, Chief, Appellate Division,
were on brief, for appellee.
February 10, 2016
* Of the District of Massachusetts, sitting by designation.
BARRON, Circuit Judge. Wayne Vargas-De Jesús appeals
the District Court's denial of his 28 U.S.C. § 2255 petition for
post-conviction relief. Vargas contends that his petition should
have been granted because his trial counsel provided ineffective
assistance at sentencing in violation of the Sixth Amendment. We
affirm.
I.
Because we are considering a § 2255 petition, we recount
the proceedings not only through conviction and sentencing, but
also through Vargas's direct appeal. That way, we will have
provided all of the background that is relevant to the issues that
are now before us on post-conviction review.
We start with what happened at trial. In 2008, a jury
found Vargas guilty of two counts of possession with intent to
distribute a controlled substance within one thousand feet of a
school, in violation of 21 U.S.C. §§ 841(a)(1) and 860, and one
count of conspiracy to do the same, see 21 U.S.C. § 846.1
In rendering the verdict, the jury set forth findings
about the drug quantity involved in each offense in a special
1 We note that although the presentence report ("PSR") and
the parties' briefs state that Vargas was convicted of conspiracy
to possess with intent to distribute a controlled substance within
one thousand feet of a school, the jury found Vargas guilty of
Count 1 of the indictment, which charged Vargas with "[c]onspiracy
to possess with intent to distribute and to distribute controlled
substances" within one thousand feet of a school. This apparent
discrepancy has no bearing on our decision.
- 2 -
verdict form. The jury found that one of the two substantive
possession counts involved 50 grams or more of cocaine base and
that the other involved 5 kilograms or more of cocaine. The jury
also found that the conspiracy count involved at least 50 grams of
cocaine base.
The probation officer then prepared the presentence
report ("PSR"). Apparently relying on the jury's findings in the
special verdict form, the PSR recommended a base offense level of
32 under the United States Sentencing Guidelines based on drug
quantities of 5 kilograms of cocaine and 50 grams of cocaine base.
After applying various enhancements, and using a criminal history
category of I, the PSR calculated a guideline sentencing range of
210 to 262 months' imprisonment.
Defense counsel did not object at the sentencing hearing
to the PSR's drug quantity determination. The District Court
adopted that determination, as well as the PSR's other
recommendations. The District Court then imposed a sentence of
210 months' imprisonment on each of Vargas's three counts, with
those sentences to be served concurrently.
Vargas appealed. He argued that the District Court did
not have jurisdiction over the two substantive possession counts
due to the Federal Juvenile Delinquency Act (FJDA), 18 U.S.C. §
5032. We agreed because the only evidence supporting those counts
concerned conduct Vargas engaged in before he had reached the age
- 3 -
of eighteen -- the age of majority -- and because the government
had not certified that the case satisfied one of the enumerated
conditions in the FJDA that would permit federal court jurisdiction
over juvenile conduct. See United States v. Vargas-De Jesús, 618
F.3d 59, 61-65 (1st Cir. 2010).
At the same time, we rejected Vargas's argument that,
under the FJDA, the District Court also lacked jurisdiction over
the conspiracy count. Id. at 65. We reasoned that the government
had supported the conspiracy count with evidence of conduct that
Vargas engaged in not only before but also after he had turned
eighteen. Id. at 65-66. And, citing our decision in United States
v. Welch, 15 F.3d 1202 (1st Cir. 1993), we held that a jury may
consider evidence of a defendant's pre-majority conduct to
establish the existence of a conspiracy so long as the defendant
had "in some manner ratified his participation in the conspiracy
after attaining majority." Vargas-De Jesús, 618 F.3d at 65
(alterations and internal quotation marks omitted).
On remand, the District Court did not resentence Vargas.
Instead, the District Court entered an amended judgment reflecting
that Vargas had been convicted of only the conspiracy count. The
District Court then imposed the same sentence that it had selected
at Vargas's pre-appeal sentencing -- 210 months' imprisonment.2
2 The District Court did so even though Vargas's initial
sentence was based on a mandatory minimum sentence and a guidelines
- 4 -
Following the District Court's entry of the amended
judgment, Vargas, proceeding pro se, filed a petition to vacate or
modify his sentence under 28 U.S.C. § 2255. The District Court
referred Vargas's petition to a magistrate judge, who recommended
denying the petition. The District Court adopted that
recommendation and thus denied the petition.
Both the Magistrate Judge and the District Court
construed the petition to argue only that the defense counsel had
provided ineffective assistance during Vargas's trial. Neither
read the petition to contend that the defense counsel had also
provided ineffective assistance at sentencing.
Following the District Court's denial of the petition,
Vargas sought a certificate of appealability ("COA"). The District
Court denied the request. Vargas -- still proceeding pro se --
requested a COA from this Court.
In considering Vargas's request, we interpreted Vargas's
petition to argue that his counsel was ineffective both at trial
and at sentencing. We issued a COA only as to the latter question,
upon which the District Court had not ruled. Specifically, we
granted Vargas a COA on the issue:
sentencing range calculated on the understanding that Vargas was
responsible for 5 kilograms of cocaine -- an amount that the jury
had found with respect to the substantive count, but not with
respect to the conspiracy count. But Vargas does not raise any
issue to us regarding the District Court's decision not to
resentence him, and therefore we do not consider any such issue.
- 5 -
whether counsel was constitutionally
ineffective for failing to challenge the drug
quantity attributed to petitioner at
sentencing, given that petitioner's
participation in the charged conspiracy
occurred largely while he was underage, and
that the evidence of narcotics transactions
presented at trial was limited to transactions
occurring before petitioner reached the age of
majority.
We also granted Vargas's request for appointment of counsel.
II.
Where, as here, the District Court did not address the
ineffective assistance of counsel claim that we certified for
appeal, "an appellate court usually is ill-equipped to handle the
fact-specific inquiry that such claims often require." United
States v. Ofray-Campos, 534 F.3d 1, 34 (1st Cir. 2008).
Nevertheless, here we may address such a claim because "the
critical facts are not in dispute and the record is sufficiently
developed to allow reasoned consideration of the claim." United
States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993).3
In pressing his ineffective assistance claim, Vargas
contends that the "only evidence of actual drug quantities
3 Of course, by virtue of the posture in which this case
comes to us, the District Court did not hold an evidentiary hearing
on the issue that we certified for appeal. But Vargas makes no
argument that an evidentiary hearing is necessary to resolve that
issue, and thus any such argument is waived. See Moreno-Morales
v. United States, 334 F.3d 140, 145 (1st Cir. 2003) (stating that
evidentiary hearings on § 2255 petitions "are the exception, not
the norm, and there is a heavy burden on the petitioner to
demonstrate that an evidentiary hearing is warranted").
- 6 -
introduced during [his] trial involved drug transactions that took
place prior to him reaching the age of majority," and that defense
counsel should have objected to the use of that pre-majority
evidence to calculate Vargas's sentence. Vargas argues that, had
counsel so objected, the objection would have been successful and
would have resulted in a lower sentence. He thus claims
ineffective assistance of counsel at sentencing. See Strickland
v. Washington, 466 U.S. 668, 687-88 (1984) (holding that, to
succeed on an ineffective assistance of counsel claim, a petitioner
must show both deficient performance and prejudice); see also
Lafler v. Cooper, 132 S. Ct. 1376, 1385-86 (2012) (stating that
Strickland applies in the sentencing context, as "there exists a
right to counsel during sentencing").
An attorney's performance is deficient under Strickland,
however, "only where, given the facts known at the time, counsel's
choice was so patently unreasonable that no competent attorney
would have made it." Knight v. Spencer, 447 F.3d 6, 15 (1st Cir.
2006) (internal quotation marks omitted). To prevail on a claim
of deficient performance, moreover, a defendant must "overcome the
strong presumption" that the action he challenges might be sound
strategy on the part of his attorney. See Horton v. Allen, 370
F.3d 75, 81 (1st Cir. 2004) (internal quotation marks omitted).
We conclude that Vargas has not overcome that strong presumption
because an objectively reasonable counsel could have made a
- 7 -
strategic choice not to object to the use of Vargas's pre-majority
conduct in fashioning Vargas's sentence. See Wilder v. United
States, 806 F.3d 653, 660 (1st Cir. 2015) (judging whether counsel
was ineffective by asking whether "[o]bjectively reasonable
counsel could have made a strategic choice" to do as actual counsel
did).
There was, at the time of sentencing, substantial out-
of-circuit precedent uniformly rejecting the argument that pre-
majority conduct could not be considered for purposes of sentencing
in a case like Vargas's. See United States v. Gibbs, 182 F.3d
408, 442 (6th Cir. 1999) (holding that the district court could
"take into account quantities of crack cocaine [the defendant]
sold before he reached age eighteen as relevant conduct to [the
defendant's] . . . drug trafficking convictions"); United States
v. Thomas, 114 F.3d 228, 267 (D.C. Cir. 1997) ("Since [the
defendant] was properly convicted in adult court of a conspiracy
he joined as a juvenile but continued in after eighteen, the
Guidelines unambiguously permit the court to consider his and his
co-conspirators' foreseeable conduct that occurred during the
commission of the [entire conspiracy] offense." (alteration in
original) (internal quotation marks omitted)); United States v.
Sparks, 309 F. App'x 713, 717 (4th Cir. 2009) (unpublished) ("[I]n
sentencing an adult defendant for conspiracy, a district court may
consider all relevant conduct, including conduct which occurred
- 8 -
when the defendant was a juvenile participant in the conspiracy.
Accordingly, we find [the defendant's] argument that the district
court erred in considering the drug quantities attributable to him
as a juvenile to be without merit.").4 In addition, our own
precedent addressing the issue was at best equivocal. See United
States v. Rodríguez, 731 F.3d 20, 30 (1st Cir. 2013) (describing
Welch, 15 F.3d 1202, as reviewing a "drug-quantity calculation
that included the defendant's pre- and post-majority conduct,"
"vacat[ing] the sentence not because it included pre-majority
conduct, but [on other grounds]," and therefore, "[b]y
implication, [holding that] inclusion of the defendant's pre-
majority conduct was permissible," but nonetheless declining to
decide the issue).
But the problem for Vargas's claim of ineffective
assistance is not just that the precedent was hardly favorable.
As the government points out, by pressing such an objection,
defense counsel could have risked opening the door to the District
Court's reevaluation of the PSR's drug quantity calculation. Such
a reevaluation -- even if it succeeded in excluding pre-majority
conduct -- might have resulted in a higher drug quantity
calculation than that contained in the PSR. See United States v.
4 No court has held to the contrary since. In fact,
another circuit has joined the consensus. See United States v.
Flores, 572 F.3d 1254, 1269-70 (11th Cir. 2009).
- 9 -
Flores-De-Jesús, 569 F.3d 8, 37 (1st Cir. 2009) ("In determining
drug quantity for purposes of calculating a defendant's base
offense level under the Guidelines, the sentencing court may
attribute to the defendant all reasonably foreseeable quantities
of contraband that were within the scope of the criminal activity
that he jointly undertook." (internal quotation marks omitted)).
The record shows that the government indicated at the
sentencing hearing that it was prepared to make an argument that
the drug quantity that the PSR attributed to Vargas was a low
estimate of the amount of drugs for which Vargas was responsible.
In so arguing, the government stated that "the narcotics that were
distributed at this drug point clearly exceeded [the amounts used
to calculate the base offense level]," and that "by the testimony
of both Ricardo Madera and the government forensic chemist from
the Puerto Rico Forensic Science Institute, it could be easily
determined that the amount of cocaine base or cocaine were higher
than the amounts taken into consideration in the presentence
report."
In addition, Vargas at no point challenged the PSR's
description of Vargas as being a member of a large drug
distribution scheme5 that operated for three years, including for
5 Two incidents discussed at trial -- although both
occurring before Vargas reached the age of eighteen -- give a sense
of the substantial scale of the conspiracy. A confidential
informant testified at trial that, on one occasion, he called
- 10 -
at least nine months after Vargas had attained the age of majority.
More specifically, the PSR described that distribution scheme as
one that purchased drugs in wholesale quantities and sold them at
a drug distribution point which operated seven days a week, for
twelve hours a day. The PSR went on to describe Vargas as the
"owner" of the scheme's cocaine at a drug point and as a "manager"
of the conspiracy. Vargas did challenge the PSR's description of
him as an "owner" and "manager." But the District Court overruled
that objection on the ground that there was plenty of contrary
evidence presented at trial.
In sum, Vargas has not shown that his counsel's failure
to challenge the quantity determination in the PSR resulted from
an unreasonably deficient judgment. Rather, the record supports
the conclusion that counsel's decision not to make that challenge
reflected a quite reasonable calculation of risk versus reward.
See United States v. Natanel, 938 F.2d 302, 310 (1st Cir. 1991)
(holding that counsel's decision not to make a closing argument on
one charged count, "while admittedly a gamble," was a "reasonable
strategic choice" and therefore did not constitute deficient
performance even if "in retrospect, [it was] unsuccessful or even
Vargas to purchase two packages of cocaine base for $500, and that,
on a second occasion, he discussed buying 10 kilograms of cocaine
from Vargas. Vargas-De Jesús, 618 F.3d at 65.
- 11 -
unwise"). For that reason, we reject Vargas's request for post-
conviction relief on the sole claim we certified for appeal.6
III.
For the foregoing reasons, the District Court's denial
of Vargas's § 2255 petition is affirmed.
6 Vargas also argues that his counsel was ineffective at
sentencing because he "failed to argue that [Vargas] should receive
a downward departure based on his youth at the time of the
individual acts." But we do not address this argument. It is
outside the scope of the COA, and Vargas did not attempt -- below
or on appeal -- to obtain a COA on this issue. See Peralta v.
United States, 597 F.3d 74, 83 (1st Cir. 2010) (per curiam)
(holding that, because the petitioner "failed to request a COA as
to [certain] issues in either the district court or the court of
appeals, [the defendant] ha[d] waived his right to appellate review
of those issues").
- 12 -