USCA1 Opinion
September 23, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1277
LEOPOLD DEMARCO,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
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Before
Breyer, Chief Judge,
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Selya and Boudin, Circuit Judges.
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Leopold Demarco on brief pro se.
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Edwin J. Gale, United States Attorney, Margaret E. Curran
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and Lawrence D. Gaynor, Assistant United States Attorneys, on
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brief for appellee.
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Per Curiam. Petitioner challenges the denial of a
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motion under 28 U.S.C. 2255 to vacate, set aside or correct
his sentence.1 He alleges that the district court
erroneously enhanced his sentence two levels for possession
of a firearm during the offense. He also alleges ineffective
assistance of counsel in the failure to object on this ground
and to take a direct appeal from the sentence imposed. We
affirm the district court's disposition.
Petitioner pleaded guilty to a cluster of charges
stemming from his involvement in a large scale marijuana
distribution operation.2 In return for his plea, the
government agreed to recommend dismissal of two of the
charges,3 and imposition of a sentence at the low end of the
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1. Due to a tangled procedural history, summarized in the
district court's decision of February 3, 1993, this appeal is
taken from an order denying petitioner's motion for relief
from judgment. That motion, in turn, sought reconsideration
of the court's May 12, 1992 order denying petitioner's motion
under 28 U.S.C. 2255.
2. The indictment charged a conspiracy among defendant and
six others to distribute and possess with intent to
distribute 1,000 kilograms or more of marijuana, in violation
of 21 U.S.C. 846. In addition to that charge, defendant
pleaded guilty to the following charges in the indictment:
possession with intent to distribute the same quantity, 21
U.S.C. 841(a)(1), 841(b)(1)(4); using a communications
facility for the commission of a narcotics offense, 21
U.S.C. 843(b); maintaining a place for the purpose of
distributing marijuana, 21 U.S.C. 856.
3. The charges dismissed by agreement were: possession of a
firearm during and in relation to a drug trafficking crime,
18 U.S.C. 924(c), and operating a continuing criminal
enterprise, 21 U.S.C. 848.
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guideline offense level chosen by the court. The plea
agreement recited the parties' understanding that defendant's
Criminal History Category was I, and that the applicable
guideline offense level would be either 34, 35 or 36,
depending on the district court's ruling.
The presentence report calculated the applicable
offense level at 36 as follows: (1) the base offense level
was 32; (2) a two level increase was assessed pursuant to
U.S.S.G. 2D1.1(b)(1) for possessing a firearm during the
offense; (3) a four level increase was assessed under
U.S.S.G. 3B1.1 for being an organizer or leader of a
criminal activity that involved five or more participants;
and (4) petitioner was awarded a two-level decrease in
offense level for acceptance of responsibility pursuant to
3E1.1.
Petitioner objected only to the four level
enhancement for being an organizer or leader. He
successfully renewed this contention as his sole objection at
the sentencing hearing. He testified at length about his
role in the conspiracy, the government presented a rebuttal
witness on point, and there were vigorous arguments by both
sides. The district court agreed that petitioner's
involvement qualified only for a two level enhancement under
3B1.1(c), not a four level enhancement. At petitioner's
urging, the court ruled that the proper guideline offense
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level was 34.4 Accepting the plea agreement, the court
sentenced petitioner to 151 months, the low end of the lowest
guideline offense level conceded to be applicable by the
parties.
Petitioner did not take a timely appeal from the
sentence. Instead, he filed a 2255 motion one year later
challenging the sentence on the ground that the court erred
in imposing the two level increase for possession of a
firearm. He argued that there was an insufficient nexus
between the loaded firearm found in his home and the
narcotics offenses to which he pleaded guilty. In reply to
the government's contention that this claim of error had been
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4. The following exchange between petitioner's counsel and
the court occurred in petitioner's presence at the hearing:
Counsel: [A]ll we are asking you to do is
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sentence this defendant at the low end of level 34.
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He has no quarrel with that at all. He agrees he
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should be sentenced at 34.
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The Court: You want me to sentence him to 151
months? That's what it is 151 to 188 months.
Counsel: That's what I want, your Honor, yes.
Sentencing Hearing of March 1, 1991, Tr. at 79, ll. 10-17
(emphasis added).
Petitioner had an opportunity to directly address the
court after this exchange, as well as after the court
indicated its likely ruling. Petitioner indicated no
objection. Tr. at 86-23 to 90-14.
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forfeited by a double procedural default, petitioner claimed
ineffective assistance by his counsel.5
We agree with the district court's conclusions. On
appeal, the fact-finder's determination that petitioner
received effective assistance of counsel at sentencing, "may
be overturned only for clear error." Isabel v. United
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States, 980 F.2d 60, 64 (1st Cir. 1992). "[P]etitioner bears
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a very heavy burden on an ineffective assistance claim."
Lema v. United States, 987 F.2d 48 (1st Cir. 1993). "The
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court must not only find that defense counsel's performance
was deficient, but that it was so prejudicial as to undermine
confidence in the outcome." Strickland v. Washington, 466
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U.S. 668, 689 (1984). And petitioner must "overcome the
presumption that, under the circumstances, the challenged
action `might be considered sound trial strategy.'"
Strickland, 466 U.S. at 689 (citation omitted).
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Applying these standards, petitioner's argument
falls far short of the "clear error" threshold. Petitioner
offered no cogent argument or evidence to overcome the very
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5. These were the only issues presented below and in
petitioner's main brief. In his reply brief, however,
petitioner seems to also argue error in the point level
increase assigned by the district court under 3B1.1(c), the
very matter upon which petitioner prevailed at the sentencing
hearing. Reply Br. at 6, 7. Aside from the reply brief's
apparent misstatement of the record (the ultimate increase
was two levels, not four as claimed in the brief), we do not
consider alleged errors assigned for the first time on
appeal.
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strong presumption that counsel's failure to object on this
ground was a deliberate strategic decision. The loaded gun
had been found in petitioner's home along with a large amount
of cash ($266,230.00), drug paraphernalia, and a suitcase
with marijuana residue. There was substantial testimony at
the hearing, including petitioner's own testimony, that
petitioner's home had served as a routine base of operations
for the conspiracy. Even after the base of operations was
moved elsewhere, the presentence report and testimony showed
that petitioner's home continued to be used for drug
distribution activities, and the cash represented profits
from the illegal scheme.6
In similar cases we have held that the base offense
level should be increased by two levels under U.S.S.G.
2D1.1(b)(1) unless it is "clearly improbable that the weapon
and the offense were connected." United States v.
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Corcimiglia, 967 F.2d 724, 726 (1st Cir. 1992); United States
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6. In his reply brief petitioner now asserts there was no
evidence to connect his home, and the money found, to the
illegal drug activities. These assertions are flatly
contradicted by his own testimony at the hearing as well as
that of the government's witness. Sentencing Hearing of
March 1, 1991 at 12-20 to 13-9; 13-19 to 14-6; 21, ll. 9-12;
45 to 46; 52; 55; 59; 68-69; see also, Presentence Report at
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10. We also reject as meritless petitioner's reply brief
argument that dismissal of the charge against him for
possession of a weapon in violation of 18 U.S.C. 924(c) was
inconsistent with enhancement of his sentence under U.S.S.G.
2D1.1(b)(1). It is well settled that conduct not formally
charged may enter into the decision on sentencing guideline
range. See generally United States v. Jackson, 1993 U.S. App.
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LEXIS 22019, at *8 (1st Cir. Aug. 1, 1993) (citing cases).
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v. McDowell, 918 F.2d 1004, 1011 (1st Cir. 1990) (citing
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cases). Given the admission that illegal drug activities
occurred in the very place where the gun was found, counsel
could not have reasonably expected to succeed on an argument
that it was "improbable" that the gun was connected to the
illegal activity. The failure to object on that basis,
especially in light of the court's express inclination to
sentence petitioner in accordance with the plea agreement,
was undoubtedly deliberate, and, as the court held, not
prejudicial to petitioner.
As to counsel's failure to take a direct appeal
from the sentence, we have held that where a criminal
defendant loses his right to a direct appeal through
dereliction of his counsel, he is entitled to a new appeal
without first showing a meritorious appellate issue. Bonneau
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v. United States, 961 F.2d 17 (1st Cir. 1992); United States
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v. Tajeddini, 945 F.2d 458, 466-67 (1st Cir. 1991), cert.
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denied, 112 S. Ct. 3009 (1992). However, a defendant who
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voluntarily forfeits his right to a direct appeal is not
entitled to assign error for the first time on collateral
review without showing both cause for the default and actual
prejudice resulting from the assigned error. United States
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v. Frady, 456 U.S. 152 (1982); see also Tajeddini, 945 F.2d
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at 468 (remanding case to district court to determine whether
petitioner had voluntarily foregone his right to appeal).
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Petitioner's excuse for failing to take a direct
appeal is that he didn't know he had the right to appeal.
First he blames his lack of knowledge on his counsel,
claiming that counsel failed to advise him of his right to
appeal. However, the letter he offered from his attorney
does not support this claim.7 Second, petitioner claims he
was in "shock" and under the influence of medication at the
time of sentencing. For this reason, petitioner alleges, he
could not understand the judge's plain statement informing
petitioner of his right to appeal the sentence. Petitioner's
"shock" claim, however, is belied by his own lengthy, concise
and responsive testimony at the hearing. And the record
shows no mention of petitioner's use of medication at the
time of sentencing. While the district court did
not expressly rule on the voluntariness of petitioner's
failure to appeal, the record before us is plain. As the
letter from his counsel affirms, there was no incentive for
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7. The letter from petitioner's attorney dated July 8, 1991,
does not state that petitioner was uninformed. At best it is
equivocal on that point
I did not file a Notice of Appeal since it is
my recollection that it would not be in your best
interest to raise an issue (1) that you could not
win; and (2) that might open the door to a re-
calculation of the entire sentence.
If, however, your recollection differs, you
could file a 2255 alleging ineffective assistance.
Petitioner's Traverse to Government's Objection, Exhibit A.
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petitioner to take a direct appeal because he had obtained
all the relief he sought at the sentencing hearing. Aside
from his transparently thin claim of lack of knowledge,
petitioner offered no evidence below to rebut the presumption
of a voluntary waiver. He asserts no other cause for his
procedural default, nor any prejudice from the alleged error.
Accordingly, we affirm the judgment below.
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