996 F.3d 57
1st Cir.2021Background
- Fernandez was arrested masked with a backpack of drugs, an extended magazine, and a Glock; he threw the gun while fleeing. He pled guilty under 18 U.S.C. § 924(c)(1)(A) pursuant to a plea agreement that included a joint recommendation of a 60‑month mandatory minimum sentence.
- The PSR contained two versions of events: the plea version (matching the plea agreement) and a probation officer's version that additionally stated Fernandez pointed the gun at a police officer. Trial counsel did not object to the PSR before sentencing.
- At sentencing the district court relied on the PSR and imposed 120 months (above the parties’ 60‑month recommendation). Counsel belatedly objected after the sentence was pronounced.
- This Court affirmed the 120‑month sentence on direct appeal, explaining that timely objections to PSRs are required and the judge had other facts supporting the sentence.
- Fernandez filed a § 2255 petition claiming ineffective assistance for counsel’s failure to timely object to the PSR’s “pointed gun” allegation; the district court denied relief (invoking law‑of‑the‑case). The First Circuit granted a COA as to the ineffective‑assistance claim and reviewed the § 2255 denial.
- Applying Strickland, the Court held Fernandez failed to prove prejudice: the record supported the “pointing” allegation and multiple independent aggravating facts supported the 120‑month sentence, so removal of that single allegation would not reasonably likely have produced a lesser sentence. The § 2255 denial was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel was ineffective for failing to timely object to the PSR’s statement that Fernandez pointed a gun at an officer | Counsel’s omission was deficient and, but for it, the PSR would likely have been corrected and a shorter (60‑month) sentence imposed | The record independently supports the pointing allegation and many other aggravating facts; removing the allegation would not likely have changed the sentence | No prejudice under Strickland prong two; § 2255 relief denied and district court’s denial affirmed |
| Whether the law‑of‑the‑case doctrine barred the § 2255 ineffective‑assistance claim | Fernandez argued ineffective‑assistance was not previously litigated and thus not barred | Government argued prior appellate decision foreclosed relitigation of sentencing facts | Court held law of the case did not bar a first‑time ineffective‑assistance claim, but affirmed denial on prejudice grounds |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong ineffective‑assistance test: performance and prejudice)
- Padilla v. Kentucky, 559 U.S. 356 (2010) (discusses Strickland standard and deficient performance inquiry)
- Lee v. United States, 137 S. Ct. 1958 (2017) (effective assistance required at critical stages including plea)
- United States v. Fernandez-Garay, 788 F.3d 1 (1st Cir. 2015) (direct appeal affirming 120‑month sentence and upholding reliance on PSR absent timely objection)
- United States v. Morrison, 449 U.S. 361 (1981) (counsel error does not warrant reversal absent effect on the judgment)
- United States v. Rivera-González, 776 F.3d 45 (1st Cir. 2015) (discusses treating the mandatory minimum as the guideline sentence in § 924(c) cases)