08-5176-cr
United States v. Mena

                                    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 “summary order”). A party citing 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the twentieth day of January two thousand and ten.

PRESENT:

          AMALYA L. KEARSE ,
          JOSÉ A. CABRANES,
          DEBRA ANN LIVINGSTON ,
                       Circuit Judges.

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UNITED STATES OF AMERICA ,

                               Appellee,

          v.                                                                               No. 08-5176-cr

LEO MENA ,

                               Defendant-Appellant.

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FOR DEFENDANT-APPELLANT:                                       Kerry Sloane Bassett, Bassett & Bassett, P.C., Central
                                                               Islip, NY.

FOR APPELLEE:                                                  Raymond A. Tierney, Assistant United States
                                                               Attorney (Benton J. Campbell, United States
                                                               Attorney, and Emily Berger, Assistant United States
                                                               Attorney, on the brief), Eastern District of New York,
                                                               Brooklyn, NY.
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       Appeal from a judgment of the United States District Court for the Eastern District of New
York (Joanna Seybert, Judge).

     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

        Defendant Leo Mena (“Mena” or “defendant”) appeals from a judgment entered October
20, 2008 sentencing him principally to three months’ imprisonment following his plea of guilty to
accessory after the fact in violation of 18 U.S.C. § 3. Mena pleaded guilty to assisting Paul Sullivan
(“Sullivan”), a business acquaintance, in defrauding the United States Small Business Administration.
In sentencing Mena, the District Court noted that he had lied to the United States Probation Office
(“USPO”) about his wife’s living situation and the care he provided for her.

         On appeal, Mena argues that his sentencing counsel rendered ineffective assistance by failing
to explain—either in a written objection to the presentence report or at the sentencing
hearing—that the reason he misled the USPO was to protect his wife. Mena’s wife was on federal
probation at the time of his sentencing and, according to Mena, she lied to the USPO about her
living arrangement. Mena contends that he subsequently lied to the USPO to protect his wife from
being found in violation of the terms of the conditions of her probation. We assume the parties’
familiarity with the remaining factual and procedural history of this case.

         To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466
U.S. 668 (1984), a defendant “must (1) demonstrate that his counsel’s performance fell below an
objective standard of reasonableness . . . and (2) affirmatively prove prejudice arising from counsel’s
allegedly deficient representation.” Carrion v. Smith, 549 F.3d 583, 588 (2d Cir. 2008) (internal
quotation marks omitted). Although we prefer to address claims of ineffective assistance of counsel
in collateral proceedings, rather than on direct appeal, we may take one of three actions when
presented with a claim of ineffective assistance of counsel on direct appeal: “(1) decline to hear the
claim, permitting the appellant to raise the issue as part of a subsequent [28 U.S.C.] § 2255 petition;
(2) remand the claim to the district court for necessary fact-finding; or (3) decide the claim on the
record before us.” United States v. Leone, 215 F.3d 253, 256 (2d Cir. 2000). When the resolution of
the claims “is beyond any doubt” or to resolve them “would be in the interest of justice,” we may
choose to entertain these claims on direct appeal. United States v. Matos, 905 F.2d 30, 32 (2d Cir.
1990) (internal quotation marks omitted).

        We are satisfied that Mena’s claim of ineffective assistance of counsel can and should be
resolved on this direct appeal. We further conclude that the claim fails because Mena cannot satisfy
either prong of the Strickland analysis.

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        With respect to prejudice, we find in the record no basis for the claim that Mena would have
received a more lenient sentence if his counsel had made the objections that defendant now claims
he should have made. The fact that Mena’s lies were motivated by a desire to mislead his wife’s
probation officers rather than his own makes them no less objectionable. If anything, this revelation
would likely have confirmed, rather than rebutted, the sentiments expressed by the District Court:
“[A]t this juncture I don’t even have the slightest confidence that you will [abide by the terms of
probation], because you’re always looking for the edge, Mr. Mena. You’re always looking to beat the
system . . . .” J.A. 51. Because Mena’s explanation would have been unlikely to evoke sympathy
from the District Court, he has not shown prejudice resulting from his counsel’s failure to raise this
anomalous objection.

         For this same reason, Mena cannot show that his counsel’s performance was objectively
unreasonable. Even assuming that Mena conveyed to counsel the purported reason why he was
dishonest with the USPO, counsel’s decision to not make this argument, and to focus instead on the
substantial assistance that Mena provided in connection with the prosecution of Sullivan, was more
than reasonable. See Strickland, 466 U.S. at 689 (explaining that “[j]udicial scrutiny of counsel’s
performance must be highly deferential” and that “the defendant must overcome the presumption
that, under the circumstances, the challenged action might be considered sound . . . strategy”
(internal quotation marks omitted)); Greiner v. Wells, 417 F.3d 305, 319 (2d Cir. 2005) (“We will not
normally fault counsel for foregoing a potentially fruitful course of conduct if that choice also entails
a significant potential downside.” (internal quotation marks omitted)). Notably, when given the
opportunity to make a statement to the Court, Mena also declined to reveal what he now claims is
the true reason for his dishonesty. Accordingly, we conclude that counsel was not deficient for
failing to argue that Mena lied to the USPO in an effort to conceal his wife’s violation of the terms
of her own probation.



                                           CONCLUSION

        We have considered all of defendant’s arguments and find them to be without merit. For
the foregoing reasons, the judgment of the District Court is AFFIRMED.


                                                FOR THE COURT,
                                                Catherine O’Hagan Wolfe, Clerk of Court

                                                By ______________________________




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