Filed: Jul. 31, 2009
Latest Update: Feb. 21, 2020
Summary: the trial court.debut in the district court.2, The facts in the instant case are even stronger in favor of, waiver than those in Rodríguez-Castillo. Here, the appellant's, counsel affirmatively accepted the findings contained in the PSI, Report. United States v. Jiménez, 512 F.3d 1, 3 (1st Cir.
Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 08-1421
UNITED STATES OF AMERICA,
Appellee,
v.
ADALBERTO CARRASQUILLO-CARMONA, A/K/A TITÓN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Boudin, Selya and Stahl, Circuit Judges.
José R. Olmo-Rodríguez on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney (Chief, Appellate
Division), and Luke Cass, Assistant United States Attorney, on
brief for appellee.
July 31, 2009
SELYA, Circuit Judge. A jury found defendant-appellant
Adalberto Carrasquillo-Carmona guilty of carjacking a motor vehicle
with intent to cause death or serious bodily injury. See 18 U.S.C.
§ 2119(2). The district court imposed a 108-month incarcerative
sentence. This timely appeal followed.
We start with the relevant factual and procedural
background. The government proved at trial that on November 13,
2005, the appellant had a chance encounter with a family friend and
distant relative, Justo Pérez García, at a car wash. The friend,
familiarly known as "Poto," gave the appellant a ride home after
the pair made a long, wet stop at a bar. Near the end of the trip,
the appellant attacked Poto with a lug-wrench, stole Poto's
vehicle, and drove away. The caper ended when the appellant
crashed into a church and abandoned the wrecked car.
Poto subsequently filed a complaint with the Federal
Bureau of Investigation. In short order, the appellant was
arrested; waived his Miranda rights, see Miranda v. Arizona, 384
U.S. 436, 444 (1966); and made a number of incriminating
statements. Eventually, he wrote and signed a full confession.
In due course, a federal grand jury indicted the
appellant for carjacking. After his counsel moved unsuccessfully
to suppress the confession and other inculpatory statements on
grounds not relevant here, the appellant went to trial. The jury
found him guilty. The district court sentenced him at the bottom
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of the applicable guideline sentencing range (GSR): 108 months in
prison.
The appellant's principal claim of error is premised on
the allegedly ineffective assistance provided by his trial counsel.
This claim focuses on counsel's failure to offer into evidence at
the suppression hearing a report of a neuropsychological
evaluation. The report, prepared at the behest of trial counsel,
discloses that the appellant has an intelligence quotient (IQ) of
62 — an IQ in the mentally retarded range — and that he suffers
from "mild to moderate" cognitive impairments.
Before us, the appellant points out that voluntariness
was a sine qua non to the admissibility of his confession and other
statements at trial. Building on this foundation, he argues that
trial counsel's failure to introduce this report constituted
ineffective assistance because that report reflected adversely on
the voluntariness of his confession and other statements.
The standard for gauging claims of ineffective assistance
of counsel is familiar. See, e.g., Strickland v. Washington, 466
U.S. 668, 686-87 (1984); Ouber v. Guarino,
293 F.3d 19, 25 (1st
Cir. 2002). The proponent must show both sub-par performance on
counsel's part and substantial prejudice attributable thereto.
Strickland, 466 U.S. at 687;
Ouber, 293 F.3d at 25.
Here, however, we do not reach the merits of the
appellant's claim. "We have held with a regularity bordering on
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the monotonous that fact-specific claims of ineffective assistance
cannot make their debut on direct review of criminal convictions,
but, rather, must originally be presented to, and acted upon by,
the trial court." United States v. Mala, 7 F.3d 1058, 1063 (1st
Cir. 1993) (collecting cases). This prudential principle rests on
the truism that "the trial judge, by reason of his familiarity with
the case, is usually in the best position to assess both the
quality of the legal representation afforded to the defendant in
the district court and the impact of any shortfall in that
representation."
Id.
The case at hand is a poster child for the application of
this prudential principle. The record, as presently constituted,
leaves too much to the imagination.
For one thing, the record does not offer any real
guidance as to the crucial question of why the appellant's trial
counsel decided not to present either the report or its author at
the suppression hearing. At this point, it is impossible to tell,
except through speculation and surmise, whether counsel's decision
was a strategic choice or an oversight.
For another thing, the record is equally undeveloped as
to prejudice. Assuming, for argument's sake, that the failure to
raise the question of mental capacity at the suppression hearing
betokened deficient performance, we cannot tell, short of
conjecture, whether that failure prejudiced the appellant's
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substantive rights. After all, while the appellant is correct that
voluntariness is a sine qua non to the admissibility of a
confession, Colorado v. Connelly, 479 U.S. 157, 167 (1986), an
assessment of voluntariness requires an appraisal of the totality
of the circumstances. See United States v. Marshall,
348 F.3d 281,
286 (1st Cir. 2003). The district court's views about the effect
of the report on the totality of the circumstances (and, thus, on
the court's finding of voluntariness) is essential to a reasoned
determination of the prejudice prong of the Strickland test.
In an effort to blunt the force of this reasoning, the
appellant urges us to invoke the rarely used exception to the
principle that claims of ineffective assistance must make their
debut in the district court. That exception applies "when the
critical facts are not in dispute and the record is sufficiently
developed to allow reasoned consideration of the claim." Mala, 7
F.3d at 1063.
The appellant has not satisfied these criteria. The
record is not fully fleshed out, and only the district court — not
this court — has the institutional competence to gather the needed
supplementation. See United States v. Moran, 393 F.3d 1, 10-11
(1st Cir. 2004).
Given the gaps in the record and the myriad uncertainties
that exist, the ineffective assistance of counsel claim must be
resolved on a better-developed record. See, e.g., id. (declining
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to hear a claim of ineffective assistance, raised for the first
time on appeal, when the record was unclear as to whether counsel's
challenged decision when made, "was a calculated stratagem or a
mere oversight"). Thus, we have no principled choice but to
dismiss this assignment of error. We do so, however, without
prejudice to the appellant's pursuit of his ineffective assistance
claim through a petition filed in the district court under 28
U.S.C. § 2255. Moreover, because we believe that the appellant has
articulated a facially plausible claim of ineffectiveness, we
advise the district court that, if such a petition ensues, the
appointment of counsel would be warranted.1 See 18 U.S.C.
§ 3006A(a)(2)(B) (stipulating that, if "the interests of justice so
require, representation may be provided for a financially eligible
person" seeking relief under section 2255); see also
Mala, 7 F.3d
at 1063-64 (delineating criteria for such appointments).
The appellant's remaining ground of appeal is a claim of
sentencing error, which also relates to his mental retardation. He
contends that, had the district court given due weight to his
diminished mental capacity, it would have sentenced him below the
bottom of the GSR. See USSG §5K2.13 (providing that diminished
mental capacity may serve as a basis for a downward departure).
1
This is in no way a finding on the merits but, rather, an
acknowledgment that the appellant has limned a colorable claim.
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To begin, this argument is procedurally defaulted: the
appellant makes it for the first time in this court. The
government asserts that this omission amounts to a waiver.
Based on the record, waiver is not an implausible
conclusion. During the disposition hearing, the district court
specifically inquired whether the appellant had any objections to
the findings set out in the presentence investigation report (PSI
Report). Defense counsel replied in the negative, even though the
PSI Report made no reference either to the appellant's IQ or to his
mental retardation. In somewhat the same vein, counsel never moved
for a downward departure on any ground approximating diminished
mental capacity. This background might well support a finding of
waiver. See, e.g., United States v. Rodríguez, 311 F.3d 435, 437
(1st Cir. 2007) (differentiating between waiver and forfeiture and
finding a waiver).
We need not decide that question. As framed, the
appellant's argument boils down to a complaint that the sentencing
court should have departed sua sponte. We confronted just such an
argument, in a nearly identical posture, in United States v.
Rodríguez-Castillo, 350 F.3d 1 (1st Cir. 2003).2 There, we
discussed the possibility of waiver but assumed instead, favorably
2
The facts in the instant case are even stronger in favor of
waiver than those in Rodríguez-Castillo. Here, the appellant's
counsel affirmatively accepted the findings contained in the PSI
Report.
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to the appellant, that the failure to raise the argument was merely
a forfeiture. Id. at 5-6. Thus, we afforded review for plain
error.
Id. at 6. We follow that lead and apply the plain-error
standard here.
To satisfy this standard, the appellant must show: "(1)
that an error occurred (2) which was clear or obvious and which not
only (3) affected the defendant's substantial rights, but also (4)
seriously impaired the fairness, integrity, or public reputation of
judicial proceedings." United States v. Duarte, 246 F.3d 56, 60
(1st Cir. 2001). This standard is not appellant-friendly. "A
party who aspires to demonstrate plain error faces a steep uphill
climb." United States v. Jiménez,
512 F.3d 1, 3 (1st Cir. 2007).
The appellant's case fails to clear any of the four
hurdles that collectively comprise the plain-error standard.
Because an appellant must satisfy all four of the prescribed
elements to establish plain error, Duarte, 246 F.3d at 60, it
suffices for present purposes to discuss only the first two
elements (which typically are conjoined).
The record makes manifest that at no point during the
disposition hearing did the sentencing court disregard or ignore
evidence describing a diminished mental capacity or suggesting the
appellant's retardation. To the contrary, the court scrupulously
considered the appellant's personal characteristics as illuminated
by the record, including his history of drug abuse. The court also
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weighed the appellant's contention that his particular crime was
atypical. Given that departures from a properly calculated GSR are
discretionary, see, e.g., United States v. Quiñones-Medina, 553
F.3d 19, 24 (1st Cir. 2009), we cannot find any error — let alone
clear or obvious error — in the district court's failure to depart
sua sponte from the GSR. See
Rodríguez-Castillo, 350 F.3d at 5-6.
Accordingly, we reject the appellant's claim of sentencing error.3
We need go no further. For the reasons elucidated above,
we affirm the judgment appealed from, without prejudice to the
appellant's right to raise claims of ineffective assistance of
counsel in a separate proceeding brought pursuant to 28 U.S.C.
§ 2255.
Affirmed.
3
We take no view on whether the appellant, as part of a claim
of ineffective assistance of counsel in a subsequent section 2255
petition, may allege that trial counsel's failure to raise
diminished mental capacity as a ground for either a departure or a
variance at sentencing constituted ineffective representation.
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