STAHL, Circuit Judge.
After pleading guilty to stealing firearms and possessing stolen firearms, defendant Brandon Caparotta received a sentence of fifty-four months' imprisonment. That sentence was based, in part, on the district court's finding that Caparotta qualified as a "prohibited person" who, because of his history of substance abuse, was barred from possessing firearms. Caparotta raises two arguments on appeal, both stemming from an interview with the Pretrial Services Office during which he disclosed information about his drug use at the time of the offense. That information, he claims, was obtained upon a promise of confidentiality, and it was therefore a violation
During the early morning hours of August 23, 2010, Caparotta participated in a burglary of the Mill Creek Rod and Gun store, a federally-licensed firearms dealer in Orrington, Maine. Caparotta was arrested on August 26, 2010. On August 27, 2010, the Pretrial Services Office conducted an interview with Caparotta (which we will refer to as the "bail interview") to determine whether he was eligible for release on bond. Caparotta's attorney was present at that interview, during which Caparotta discussed, among other things, his history of substance abuse.
After the interview, the Pretrial Services Office issued a Pretrial Services Report, dated August 31, 2010. According to the report, Caparotta admitted during the bail interview that he had begun using marijuana at age nine (some ten years prior), used it twice per week, and had last used it "two days ago."
On November 10, 2010, Caparotta pled guilty to one count of stealing firearms from the premises of a federally-licensed dealer, in violation of 18 U.S.C. § 922(u), and one count of possessing stolen firearms, in violation of 18 U.S.C. § 922(j). Included in the prosecution's version of events, to which Caparotta consented when he pled guilty, were descriptions of several text messages he had sent to Robert Barker, who allegedly stored stolen guns for Caparotta and purchased guns from him. The text messages, obtained through a search of Barker's cell phone, revealed that Caparotta had been soliciting drugs and referencing his own drug use in the days immediately surrounding the crime.
In December 2010, the Probation Office conducted a presentence investigation interview (which we will refer to as the "presentence interview") with Caparotta, at which Caparotta's attorney was also present. Again, Caparotta discussed his substance abuse history, but this time, on the advice of his attorney, he declined to discuss any drug use specifically in August
We pause for a moment to explain that term. The federal Sentencing Guidelines require a BOL of 14 if the defendant "was a prohibited person at the time [he] committed the instant offense." Id. The Guidelines define "prohibited person" as any person described in 18 U.S.C. § 922(g) or (n). Id. § 2K2.1 cmt. n. 3. Section 922(g)(3), applicable here, bars firearm possession by a person "who is an unlawful user of ... any controlled substance." 18 U.S.C. § 922(g)(3). We have held that the term "unlawful user" in section 922(g)(3) "requires a `temporal nexus between the gun possession and regular drug use.'" United States v. Marceau, 554 F.3d 24, 30 (1st Cir.2009) (citing United States v. Edwards, 540 F.3d 1156, 1162 (10th Cir. 2008)). Thus, "an `unlawful user' is one who engages in `[(1)] regular use [(2)] over a long period of time [(3)] proximate to or contemporaneous with the possession of the firearm.'" Id. (citing United States v. McCowan, 469 F.3d 386, 392 n. 4 (5th Cir.2006)).
Caparotta objected to the PSR's finding that he was a "prohibited person" on the grounds that he had not admitted, during the presentence interview, that he had been using drugs at the time of the offense in August 2010. In an Addendum to the PSR, filed on January 26, 2011, the Probation Office confirmed that, during his presentence interview, Caparotta had declined to discuss "drug use near the time of the possession of the firearms" but noted that he had "indicated that he was a regular drug abuser through July 2010, with the instant offense occurring on August 23, 2010." The Addendum also stated that, during his bail interview on August 27, 2010, Caparotta had "admitted that he had last smoked marijuana a couple of days ago and was using the drug twice a week."
In a February 23, 2011 sentencing memorandum, Caparotta expounded upon his objection to the use of his bail interview statements that he had last used marijuana "two days ago" and was using the drug twice a week in August 2010.
At a sentencing hearing on June 6, 2011, the district court found that Caparotta was an unlawful user of controlled substances and thus a "prohibited person." The court rejected Caparotta's argument that section 3153(c) bars the use of bail interview statements at sentencing, noting that "the language [of that section] is restricted to guilt" and "[w]e're not deciding the issue of guilt today." As for whether, considering the bail interview information, Caparotta's drug use was sufficiently proximate to or contemporaneous with the offense to satisfy the "unlawful user" standard, see Marceau, 554 F.3d at 30, the district court recognized that there was "no direct evidence that [Caparotta] actually used marijuana... as he was holding the gun at the Mill Creek Rod and Gun shop" but nonetheless found that Caparotta's use of marijuana through August 2010 made it clear that he was an unlawful user.
The court thus used a BOL of 14 and applied the increases and reduction that the Probation Office had recommended.
Before the district court, Caparotta objected to the use of his bail interview statements on the grounds that no exception in section 3153 covered those statements, see 18 U.S.C. § 3153(c)(2), and that the statements could not be used to determine guilt, see id. § 3153(c)(3).
The relevant subsection of Rule 32 reads as follows:
Fed.R.Crim.P. 32(d)(3). Caparotta claims that his bail interview statements were "sources of information obtained upon a promise of confidentiality" and thus should have been excluded from his PSR pursuant
Under the circumstances presented here, the Probation Office had the authority to use Caparotta's bail interview statements in preparing his PSR, see 18 U.S.C. § 3153(c)(2)(C), and the district court had broad discretion to determine whether the information was appropriate to consider at sentencing, see, e.g., United States v. Rivera-Rodríguez, 489 F.3d 48, 53 (1st Cir. 2007). There was no error, much less an error that was "clear and obvious." Ríos-Hernández, 645 F.3d at 462.
Finally, we turn to Caparotta's argument that his Sixth Amendment rights were violated when his trial attorney allowed him to disclose his August 2010 drug use during the bail interview, which he claims led directly to the finding that he was a "prohibited person" under U.S.S.G. § 2K2.1(a)(6). Although Caparotta did not bring an ineffective assistance of counsel claim before the district court, "[w]e have recognized an exception to the preference for resolving ineffective assistance arguments via collateral attack where the critical facts are not genuinely in dispute and the record is sufficiently developed to allow reasoned consideration of an ineffective assistance claim." United States v. Gonzalez-Arimont, 268 F.3d 8, 13 (1st Cir. 2001) (citation and internal quotation marks omitted). In this case, the record is sufficiently developed for us to conclude that Caparotta's claim lacks merit. See id. (disposing of a clearly meritless ineffective assistance claim on direct review).
In order to prevail on a claim of ineffective assistance of counsel, a defendant must show that: (1) his attorney's performance was deficient; and (2) "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If the defendant fails to satisfy either
Here, Caparotta cannot establish prejudice, because there was ample evidence for the district court to conclude that he was a "prohibited person" even without the bail interview information. Caparotta admitted during his presentence interview that he had used marijuana regularly through July 2010, with the offense occurring in August 2010, and he sent text messages three days before the burglary and three days after the burglary soliciting drugs and referencing drug use. He has not argued that it would have been improper for the court to consider any of that evidence, which alone supported a finding that he used drugs "proximate to or contemporaneous with the possession of the firearm." Marceau, 554 F.3d at 30; see also 27 C.F.R. § 478.11 (defining "unlawful use" as use that "has occurred recently enough to indicate that the individual [was] actively engaged in such conduct" at the time of the offense, even if he did not use the substance "at the precise time" that he possessed the firearm). Thus, assuming simply for the sake of argument that Caparotta's attorney committed an error, Caparotta cannot demonstrate a reasonable probability that, but for the error, "the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. 2052.
We do not mean to suggest that Caparotta's attorney's performance was deficient. Indeed, we highly doubt that it was, as there appear to have been valid tactical reasons why she allowed Caparotta to discuss his recent drug use with the Pretrial Services Office.
For the foregoing reasons, we affirm.