
USCA1 Opinion

	




          September 23, 1993    [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-1277                                               LEOPOLD DEMARCO,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                          __________________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Selya and Boudin, Circuit Judges.                                            ______________                                 ___________________               Leopold Demarco on brief pro se.               _______________               Edwin J.  Gale, United  States Attorney, Margaret  E. Curran               ______________                           ___________________          and  Lawrence D.  Gaynor, Assistant  United States  Attorneys, on               ___________________          brief for appellee.                                  __________________                                  __________________                      Per Curiam.  Petitioner  challenges the denial of a                      __________            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                                            ____________________            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.                                         -2-            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                                         -3-            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                                            ____________________            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                                 ___________________________________                 sentence this defendant at the low end of level 34.                 ___________________________________________________                 He has no quarrel with  that at all.  He agrees  he                 ___________________________________________________                 should be sentenced at 34.                 __________________________                      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.                                         -4-            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                                                       ______      ______            States, 980 F.2d 60, 64 (1st Cir. 1992).  "[P]etitioner bears            ______            a  very heavy  burden  on an  ineffective assistance  claim."            Lema  v. United States,  987 F.2d 48  (1st Cir.  1993).  "The            ____     _____________            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                                           __________     __________            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).                 __________                      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                                            ____________________            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.                                          -5-            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.                                                      _______________            Corcimiglia, 967 F.2d 724, 726 (1st Cir. 1992); United States            ___________                                     _____________                                            ____________________            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                                         ________            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.                   _____________ _____________    _______            LEXIS 22019, at *8 (1st Cir. Aug. 1, 1993) (citing cases).                                           -6-            v.  McDowell,  918 F.2d  1004, 1011  (1st Cir.  1990) (citing                ________            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                                                                  _______            v.  United States, 961 F.2d 17 (1st Cir. 1992); United States                _____________                               _____________            v.  Tajeddini, 945 F.2d  458, 466-67  (1st Cir.  1991), cert.                _________                                           _____            denied, 112 S.  Ct. 3009  (1992).  However,  a defendant  who            ______            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                                                            _____________            v. Frady, 456 U.S.  152 (1982); see also Tajeddini,  945 F.2d               _____                        ________ _________            at 468 (remanding case to district court to determine whether            petitioner had voluntarily foregone his right to appeal).                                             -7-                        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                                            ____________________            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.                                         -8-            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.                                          ______                                         -9-
