Vargas-De-Jesus v. United States, 813 F.3d 414

In 2008 a jury convicted Wayne Vargas-De Jesús of two substantive drug-possession-with-intent counts and one conspiracy count; the jury's special verdict attributed 5 kg cocaine to one substantive count and 50 g cocaine base to another and to the conspiracy.
The PSR relied on the jury findings to calculate a base offense level 32 and a Guidelines range of 210–262 months; Vargas's counsel did not object to the PSR's drug-quantity attribution at sentencing, and the court imposed 210 months concurrent on each count.
On direct appeal this Court reversed the two substantive possession convictions under the Federal Juvenile Delinquency Act (FJDA) because the supporting evidence was pre-majority and no certification justified federal jurisdiction, but affirmed the conspiracy conviction because the government presented post-majority conduct as well.
The district court entered an amended judgment reflecting conviction only on the conspiracy count but left the 210-month sentence unchanged; Vargas then filed a pro se 28 U.S.C. § 2255 petition claiming ineffective assistance of counsel.
This Court granted a certificate of appealability solely on whether counsel was ineffective at sentencing for failing to challenge the drug-quantity attribution (5 kg) based primarily on pre-majority conduct and appointed counsel.

Issue	Vargas's Argument	United States' Argument	Held
Whether counsel was ineffective at sentencing for failing to contest the PSR's drug-quantity attribution based on pre-majority conduct	Counsel should have objected to using pre-majority transactions to calculate drug quantity for the conspiracy sentence; objection would have lowered the Guidelines range	Precedent and sentencing risk justified not objecting; objection might have opened door to a higher quantity finding and precedent mostly permitted considering pre-majority conduct	Denied — counsel's performance was not deficient; objectively reasonable strategy given then-existing authority and risk of worse outcome

Strickland v. Washington, 466 U.S. 668 (standard for ineffective assistance of counsel)
Lafler v. Cooper, 566 U.S. 156 (right to effective counsel in sentencing context)
United States v. Welch, 15 F.3d 1202 (1st Cir. 1993) (pre-majority conduct considered in conspiracy context when ratified post-majority)
United States v. Gibbs, 182 F.3d 408 (6th Cir. 1999) (pre-majority drug sales may be relevant conduct for sentencing)
United States v. Thomas, 114 F.3d 228 (D.C. Cir. 1997) (Guidelines permit considering foreseeable conduct during entire conspiracy)
United States v. Flores-De-Jesús, 569 F.3d 8 (1st Cir. 2009) (sentencing court may attribute all reasonably foreseeable quantities within scope of jointly undertaken activity)
United States v. Rodríguez, 731 F.3d 20 (1st Cir. 2013) (describing Welch and declining to definitively resolve pre-majority sentencing issue)