813 F.3d 414

1st Cir.

2016

Wаyne VARGAS-DE JESUS, Petitioner, Appellant, v. UNITED STATES, Respondent, Appellee.

No. 14-1030.

United States Court of Appeals, First Circuit.

Feb. 10, 2016.

faith “could take many forms, including, but not limited to, proof that the beneficia- ry [i.e., the noncitizen spouse] has been listed as the petitioner‘s spouse on insur- ance policies, property leases, income tax forms, or bank accounts” (citing Matter of Phillis, 15 I. & N. Dec. 385 (B.I.A. 1975))). Valdez, who as bеst we can tell from the record was represented by counsel throughout these proceedings, can hardly claim to have been unaware that the IJ and BIA might expect him to back up his testimony with documentary proof.

But even more importantly, Valdez never asked the IJ for a continuance to obtain documents, and he did not tell the IJ that he couldn‘t get ahold of anything as a result of the passage of time. He also failed to raise any argument about the unavailability of documents in his appeal to the BIA. Because “[t]his court lacks juris- diction over arguments not pressed before the BIA,” Jing Lin, 759 F.3d at 112 n. 1, we may not and do not consider this point.

CONCLUSION

Let us be perfectly clear: we do not hold that a petitioner can never establish that he married in good faith based in whole or in part on his own testimony. What we do hold is that the decisions of both the IJ and the BIA concluding that Valdez failed to carry his burden of proof in this instance are supported by substan- tial evidence. For the foregoing reasons, Valdez‘s petition for review is denied.

Susan Z. Jorgensen, Assistant United States Attorney, with whom Mainon A. Schwartz, Assistant United States Attorney, Rosa Emilia Rodriguez-Velez, United States Attorney, and Nelson Perez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for ap- pellee.

Before BARRON and STAHL, Circuit Judges, and SOROKIN,* District Judge.

BARRON, Circuit Judge.

Wayne Vargas-De Jesus 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 coun- sel provided ineffective assistance at sen- tencing in violation of the Sixth Amend- ment. 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 аppeal. 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 distrib- ute a controlled substance within one thou- sand feet of a school, in violation оf 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

Derege B. Demissie, with whom Demis- sie & Church was on brief, for appellant.

In rendering the verdict, the jury set forth findings about the drug quantity in- volved in each offense in a special 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 con- spiracy 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 cocаine and 50 grams of cocaine base. After ap- plying 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 Var- gas‘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 Federаl Juvenile Delinquency Act (FJDA), 18 U.S.C. § 5032. We agreed because the only evidence supporting those counts concerned conduct Vargas en- gaged in before he had reached the age of eighteen—the age of majority—and be- cause the government had not certified that the case satisfied one of the enumer- аted conditions in the FJDA that would permit federal court jurisdiction over juve- nile conduct. See United States v. Vargas-De Jesus, 618 F.3d 59, 61-65 (1st Cir. 2010).

At the same time, we rejected Vargas‘s argument that, under the FJDA, the Dis- trict 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 con- duct to establish the existence of a conspir- acy so long as the defendant had “in some manner ratified his participation in the conspiracy after attaining majority.” Vargas-De Jesus, 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 re- flecting 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

Following the District Court‘s entry of the amended judgment, Vargas, proceed- ing pro se, filed a petition to vacate or modify his sentence under 28 U.S.C. § 2255. The District Court referred Var- gas‘s petition to a magistrate judge, who recommended denying the petition. The District Court adopted that recommenda- tion and thus denied the petition.

Both thе Magistrate Judge and the Dis- trict 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 inef- fective assistance at sentencing.

Following the District Court‘s denial of the рetition, Vargas sought a certificate of appealability ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍(“COA“). The District Court denied the request. Vargas—still pro- ceeding pro se—requested a COA from this Court.

In considering Vargas‘s request, we in- terpreted 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 Dis- trict Court had not ruled. Specifically, we granted Vargas a COA on the issue:

whether counsel was constitutionally in- effective for failing to challenge the drug quantity attributed to petitioner at sen- tencing, given that petitioner‘s partic- ipation in the charged conspiracy oc- curred largely while he was underage, and that the evidence of narcotics trans- actions presented at trial was limited to transactions occurring before petitioner reached the age of majority.

We also granted Vargas‘s request for ap- pointment of counsel.

II.

Where, as here, the District Court did not address the ineffective assistance of counsel claim that we certifiеd for ap- peal, “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 considerаtion of the claim.” United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993).³

In pressing his ineffective assis- tance claim, Vargas contends that the “only evidence of actual drug quantities 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 evidеnce to calculate Vargas‘s sentence. Vargas ar- gues 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 assis- tаnce of counsel claim, a petitioner must show both deficient performance and prej- udice); see also Lafler v. Cooper, 566 U.S. 156, 132 S. Ct. 1376, 1385-86, 182 L. Ed. 2d 398 (2012) (stating that Strickland applies in the sentencing context, as “there exists a right to counsel during sentencing“).

An attorney‘s performance is de- ficient under Strickland, however, “only

where, given the facts known at the time, counsel‘s choice was so patently unreason- able 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 defen- dant must “overcome the strong presump- tion” that the action he challenges might be sound strategy on the part of his attor- ney. 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 be- cause an objectively reasonable counsel ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍could have made a 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 coun- sel 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 uni- formly 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 con- spiracy he joined as a juvenile but contin- ued in after eighteen, the Guidelines un- ambiguously permit the court to consider his and his co-conspirators’ foreseeable conduct that occurred during the commis- sion of the [entire conspiracy] offense.” (alteration in original) (internal quotation marks omitted)); United States v. Sparks, 309 Fed. Appx. 713, 717 (4th Cir. 2009) (un- published) (“[I]n sentencing an аdult de- fendant for conspiracy, a district court may consider all relevant conduct, includ- ing conduct which occurred when the de- fendant was a juvenile participant in the conspiracy. Accordingly, we find [the de- fendant‘s] argument that the district court erred in considering the drug quantities attributable to him as a juvenile to be without merit.“).⁴ In additiоn, our own precedent addressing the issue was at best equivocal. See United States v. Rodriguez, 731 F.3d 20, 30 (1st Cir. 2013) (de- scribing 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 be- cause 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 per- permissible,” but nonetheless declining to de- cide 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 reevalua- tion—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. Flores-De Jesus, 569 F.3d 8, 37 (1st Cir. 2009) (“In determining drug quan- tity for purposes of calculating a defen- dant‘s base offense level under the Guide- lines, 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 аn 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 govern- ment stated that “the narcotics that were distributed at this drug point clearly ex- ceeded [the amounts used to calculate the base offense level],” and that “by the testi- mony 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 consid- eration in the presentence report.”

In addition, Vargas at no point chal- lenged the PSR‘s description ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of Vargas as being a member of a large drug distribu- tion scheme⁵ that operated for three years, including for at least nine months after Vargas had attained the age of ma- jority. More specifically, the PSR de- scribed that distribution scheme as one that purchased drugs in wholesale quanti- ties and sold them at a drug distribution pоint 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 Dis- trict Court overruled that objection оn 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 chal- lenge reflected a quite reasonable calcula- tion 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 gam- ble,” was a “reasonable strategic choice” and therefore did not constitute deficient performance even if “in retrospect, [it wаs] unsuccessful or even 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.

Notes

We note that although the presentence re- port (“PSR“) and the parties’ briefs state that Vargas was сonvicted of conspiracy to possess with intent to distribute a controlled sub- stance 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 distrib- ute and to distribute controlled substances” within one thousand feet of a school. This apparent discrepancy has no bearing on our decision.

The District Court did so even though Var- gas‘s initial sentence was based on a manda- tory minimum sentence and a guidelines sentencing range calculated on the under- standing that Vargas was responsible for 5 kilograms of cocaine—an amount that the jury had found with respect to the substan- tive сount, but not with respect to the con- spiracy count. But Vargas does not raise any issue to us regarding the District Court‘s decision not to resentence him, and there- fore we do not consider any such issue.

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 hear- ing is necessary to resolve that issue, and thus any such argument is waived. See (stating that evidentiary hear- ings on § 2255 petitions “are the exception, not the norm, and there is a heavy burden on the petitioner to demonstrate that an eviden- tiary hearing is warranted“).

No court has held to the contrary since. In fact, another circuit has joined the consensus. See .

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 infor- mant testified at trial that, on one occasion, he called Vаrgas 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 also argues that his counsel was ineffective at sentencing because he “failed to argue that [Vargas] should receive a down- ward depаrture based on his youth at the time of the individual acts.” But we do not ad- dress 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 (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“).

Of the District of Massachusetts, sitting by designation.

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