                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 17-2813
                                      _____________

                                 ARTURO DELACRUZ,
                                              Appellant

                                             v.

                            UNITED STATES OF AMERICA

                                    ________________


                 On Appeal from the United States District Court for the
                                District of New Jersey
                       (D.C. Civil Action No. 3-16-cv-02078)
                       District Judge: Hon. Michael A. Shipp

                    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  November 19, 2019

            Before: CHAGARES, MATEY, and FUENTES, Circuit Judges.

                           (Opinion filed: November 21, 2019)


                                      ____________

                                        OPINION*
                                      ____________




*
  This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not
constitute binding precedent.
CHAGARES, Circuit Judge.

       Arturo Delacruz was sentenced to 108 months of imprisonment after pleading

guilty to one count of conspiracy to commit Hobbs Act robberies. He now challenges the

District Court’s denial of his motion to vacate, set aside, or correct the sentence under 28

U.S.C. § 2255. We will affirm the judgment of the District Court.

                                             I.

       We write exclusively for the parties, so our summary of the facts is brief.

Delacruz pleaded guilty to a single-count Information charging him with conspiracy to

commit Hobbs Act robberies, in violation of 18 U.S.C. § 1951(a). The guilty plea

encompassed three robberies in Trenton, New Jersey: a robbery of the Sabor Latino Bar,

a robbery of the Rapido Flores Multiservices Agency, and a robbery of a Gulf Service

Station.

       Delacruz’s plea agreement stated the parties’ understanding that under the

advisory U.S. Sentencing Guidelines Manual, the total offense level would be 29. As

relevant here, Delacruz stipulated that the adjusted offense level for the Sabor Latino Bar

robbery was 29, resulting, in part, from a six-level increase for a firearm that was not

discharged but was “otherwise used.” U.S.S.G. § 2B3.1(b)(2)(B). The three robberies

did not group together and produced a combined offense level of 32. That combined

offense level was then reduced by three levels for Delacruz’s acceptance of

responsibility.

       At Delacruz’s sentencing hearing on March 30, 2015, the sentencing judge agreed

that the total offense level was 29. The total offense level, combined with Delacruz’s


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Criminal History Category of I, corresponded to an advisory Guidelines range of 87 to

108 months of imprisonment. The sentencing judge imposed a 108-month term of

imprisonment, to be followed by a three-year term of supervised release.

       Delacruz did not directly appeal. But in 2016, he filed a pro se motion under 28

U.S.C. § 2255, claiming that his trial attorney was ineffective for failing to object to

certain sentencing enhancements. In an order entered on July 24, 2017, the District Court

denied Delacruz’s § 2255 motion, holding that he failed to show his attorney’s

performance was deficient.

       This appeal timely followed. We granted a certificate of appealability limited to

the sole question of whether Delacruz’s trial attorney was ineffective for failing to

negotiate a five-level enhancement for “brandishing” a firearm, as opposed to the agreed-

upon six-level enhancement for a firearm that was “otherwise used.” See U.S.S.G. §

2B3.1(b)(2)(B), (C). We then appointed pro bono counsel to represent Delacruz.1

                                             II.

       The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 2255, and we

have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a). When reviewing the denial of a

§ 2255 motion, we examine “legal determinations de novo, factual findings for clear

error, and matters committed to the District Court’s discretion for abuse thereof.” United

States v. Doe, 810 F.3d 132, 142 (3d Cir. 2015).




1
  We thank counsel for agreeing to take this case pro bono and commend them for their
excellent briefing.

                                              3
                                            III.

       Delacruz argues that he did not explicitly admit to facts that would support a six-

level “otherwise used” firearm enhancement for the Sabor Latino Bar robbery.

Therefore, he contends that his attorney was ineffective during plea negotiations because

he failed to negotiate a lower five-level increase for merely “brandishing” a firearm. See

U.S.S.G. § 2B3.1(b)(2)(B), (C).2

       The Sixth Amendment right to effective assistance of counsel “protects plea

bargaining, in part because poor bargaining can lead to heavier sentences.” Richardson v.

Superintendent Coal Twp. SCI, 905 F.3d 750, 765 (3d Cir. 2018). Claims of ineffective

assistance of counsel are governed by Strickland v. Washington, 466 U.S. 668 (1984).

Under Strickland, Delacruz had to show that (1) the errors by his attorney were so serious

that his counsel did not perform the function guaranteed by the Sixth Amendment, and

(2) his attorney’s deficient performance prejudiced him. 466 U.S. at 687.

       We agree with the District Court that Delacruz has not established his trial

attorney’s performance was deficient under Strickland’s first prong. To make that

showing, Delacruz had to demonstrate that his trial attorney’s performance was “so

deficient that it fell below an objective standard of reasonableness under prevailing


2
  The Government posits that Delacruz forfeited his argument that his trial attorney was
ineffective during plea negotiations because his pro se § 2255 motion in the District
Court focused solely on his attorney’s performance during the sentencing hearing. We do
not read Delacruz’s motion so narrowly. See Workman v. Superintendent Albion SCI,
915 F.3d 928, 941 (3d Cir. 2019) (explaining, in the context of a 28 U.S.C. § 2254
motion, that “[a] habeas corpus petition prepared by a prisoner without legal assistance
may not be skillfully drawn and should thus be read generously” (quotation marks
omitted)).

                                             4
professional norms.” Buehl v. Vaughn, 166 F.3d 163, 169 (3d Cir. 1999). In assessing

counsel’s conduct, we “must indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689.

       Delacruz’s trial attorney reasonably did not seek to negotiate the six-level

“otherwise used” firearm enhancement down to a five-level “brandishing” enhancement.

As the District Court observed, Delacruz used a firearm explicitly to threaten and

intimidate hostages. The Presentence Investigation Report states that during the Sabor

Latino Bar robbery, Delacruz and his co-conspirator pointed guns at employees and

patrons of the bar and then used plastic zip-tie straps to restrain them at gunpoint.

Delacruz did not object to these factual circumstances of his offense at sentencing, and

they are consistent with his admission at the plea hearing that “at least one victim was

physically assaulted and restrained by plastic zip ties.” Joint Appendix 137.

       Faced with that factual basis for the “otherwise used” enhancement, Delacruz’s

trial attorney reasonably did not seek to negotiate down to a lower five-level

enhancement for merely “brandishing” a firearm. As we have explained, “[p]ointing a

weapon at a specific person or group of people, in a manner that is explicitly threatening,

is sufficient to make out ‘otherwise use’ of that weapon.” United States v. Johnson, 199

F.3d 123, 127 (3d Cir. 1999). We therefore cannot conclude that the failure to negotiate

the “otherwise used” enhancement fell below an objective standard of reasonableness.

                                             IV.

       For the foregoing reasons, we will affirm the judgment of the District Court.




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