15-1300-cr
    United States v. Tavarez



                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

                  At a stated term of the United States Court of Appeals for the Second
    Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
    City of New York, on the 21st day of June, two thousand sixteen.

    PRESENT:
                       PETER W. HALL,
                       GERARD E. LYNCH,
                       DENNY CHIN,
                                  Circuit Judges,

    _____________________________________

    UNITED STATES OF AMERICA,

                                Appellee,

                       v.                                               No. 15-1300-cr

    LUIS GASTAVO TAVAREZ,


                      Defendant-Appellant.
    _____________________________________

    FOR APPELLEE:                                   ALEXANDER WILSON, Assistant United
                                                    States Attorney (Adam S. Hickey, Assistant
                                                    United States Attorney, on the brief), for
                                                    Preet Bharara, United States Attorney for
                                                    the Southern District of New York.

    FOR DEFENDANT-APPELLANT:                        B. ALAN SEIDLER, New York, New York.
       Appeal from a judgment of the United States District Court for the Southern District of

New York (Sullivan, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Luis Gustavo Tavarez pleaded guilty to conspiracy to commit

access device fraud, in violation of 18 U.S.C. § 1029(b).         On appeal, Tavarez argues that

counsel was ineffective for insisting that he participate in a proffer with the Government, for

advising him to accept a plea agreement that overstated his culpability and conferred no benefit

to him, and for not objecting to an enhancement for obstruction of justice, which was based on

his flight to Indiana while released on bail.         We assume the parties’ familiarity with the

underlying facts, procedural history, and issues on appeal.

       A petitioner complaining of ineffective assistance bears a heavy burden in that he must

demonstrate both (1) that his attorney’s performance fell below an objective standard of

reasonableness in light of prevailing professional norms and (2) ensuing prejudice. See

Strickland v. Washington, 

, 688, 694 (1984). With respect to the first prong, we

“indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” United States v. Gaskin, 

, 468 (2d Cir. 2004) (internal

citations and quotation marks omitted). To demonstrate prejudice, the petitioner must show “a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

below would have been different,” Puglisi v. United States, 

, 215 (2d Cir. 2009)

(internal quotation marks omitted), meaning that “counsel’s errors were so serious as to deprive

the defendant of a fair trial,” 

.




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       This Court has generally expressed a “baseline aversion to resolving ineffectiveness

claims on direct review.” United States v. Khedr, 

, 99–100 (2d Cir. 2003) (quoting

United States v. Williams, 

, 35 (2d Cir. 2000)). Unlike a claim brought pursuant to a

28 U.S.C. § 2255 motion, the record on direct appeal typically has not been developed “precisely

for the object of litigating or preserving the claim and [is] thus often incomplete or inadequate

for this purpose.” Massaro v. United States, 

, 505 (2003). We have also noted that

“the allegedly ineffective attorney should generally be given the opportunity to explain the

conduct at issue.” 

. We may nevertheless hear such a claim on direct

appeal when the “resolution is beyond any doubt or to do so would be in the interest of justice.”

States v. Matos, 

, 32 (2d Cir. 1990) (internal quotation marks

omitted)).

       Tavarez makes numerous factual assertions regarding discussions he had with counsel

about whether to engage in a proffer with the Government. Tavarez does not, however, point to

any evidence in the record supporting his version of events. With respect to counsel’s advice

that he accept the plea agreement, there is no record of the plea discussions between the

Government and Tavarez’s counsel or between Tavarez and counsel regarding whether to accept

the plea agreement. Without the benefit of affidavits or other evidence, we cannot decide

Tavarez’s ineffective assistance claim based on these events. See 

; cf.

United States v. Kimber, 

, 562 (2d Cir. 2015) (addressing ineffective assistance

claim on direct appeal where record admitted resolution “beyond any doubt” (internal quotation

marks omitted)). We therefore decline to address this aspect of Tavarez’s ineffective assistance

claim on direct review. See 

(recognizing that “in most cases a motion

brought under § 2255 is preferable to direct appeal for deciding claims of ineffective

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assistance”); United States v. Spruill, 

, 600 (2d Cir. 2015) (observing that an

ineffective assistance claim “must generally be brought collaterally to allow adequate

development of the record”).

       We do, however, resolve the ineffectiveness claim based on counsel’s failure to object to

the obstruction of justice enhancement because the record shows “beyond any doubt” that it is

meritless. See 

. The Guidelines provide for a two-step increase in

offense level if the defendant “willfully obstructed or impeded, or attempted to obstruct or

impede, the administration of justice with respect to the investigation, prosecution, or sentencing

of the instant offense.” U.S.S.G. § 3C1.1. Obstructive conduct includes “escaping or attempting

to escape from custody before trial or sentencing[ ] or willfully failing to appear, as ordered, for

a judicial proceeding.” U.S.S.G. § 3C1.1 Application Note 4(E). Tavarez does not dispute that

he cut off his electronic monitoring bracelet, left the jurisdiction, and was a fugitive for more

than two weeks until he was taken into custody by the U.S. Marshals Service. Moreover, the

district court made the necessary factual finding that Tavarez acted willfully, stating that

“[c]learly there was an attempt to evade all responsibility completely and never return again for

sentencing or anything else in this case.” App’x 94-95; see United States v. Reed, 

,

900 (2d Cir. 1995) (“Whatever circumstances are alleged to constitute obstruction in a particular

case, an enhancement under § 3C1.1 is not appropriate, by the terms of that section, unless the

obstruction was ‘willful[ ].’”). Given these circumstances, objecting to the enhancement would

have been futile and would have fit awkwardly into counsel’s strategy of arguing for a

sentencing reduction for acceptance of responsibility based, in part, on highlighting how Tavarez




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did not offer excuses for his flight and had regretted the decision.1 We conclude that the record

resolves “beyond any doubt” that counsel was not ineffective for failing to object to the

enhancement for obstruction of justice. See 

.

       We have considered all of Tavarez’s arguments and conclude that they are without merit.

We therefore AFFIRM the judgment of the district court.

                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




1
  We are not swayed by Tavarez’s assertion that he fled to Indiana because he was “stressed” or
his argument that his flight was mitigated by the fact that he did not miss any court appearances.
See United States v. Defeo, 

, 276 (2d Cir. 1994) (finding unconvincing defendant’s
argument “that the obstruction-of-justice adjustment was inappropriate because her fugitive
status did not delay sentencing and was not intended to obstruct justice”).

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