
USCA1 Opinion

	




          March 24, 1995        [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 94-1723                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                            PEDRO GUILLERMO FELIX-SANTOS,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                              _________________________                    [Hon. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                              _________________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Selya, Circuit Judge.                                         _____________                              _________________________               Bruce  J.  McGiverin,  by  appointment  of  the  Court,  for               ____________________          appellant.               Edwin  O. Vazquez,  Assistant  United States  Attorney, with               _________________          whom Guillermo Gil, United States  Attorney, and Jose A.  Quiles-               _____________                               ________________          Espinosa, Senior Litigation Counsel, were on brief, for appellee.          ________                              _________________________                              _________________________                    SELYA,  Circuit Judge.   On  March 9,  1994, appellant,                    SELYA,  Circuit Judge.                            _____________          Pedro Guillermo  Felix-Santos, pled  guilty to  four counts  of a          nine-count indictment  charging him and other  individuals with a          host of drug-related offenses.1   The district court subsequently          sentenced  appellant to a 70-month prison term, to be followed by          48 months  of supervised release.   At the  same time,  the court          dismissed the other counts that the grand jury had lodged against          Felix-Santos, including count 4    a count that charged  him with          using a firearm  during and in  relation to the  commission of  a          drug trafficking crime.  See 18 U.S.C.   924(c)(1).                                   ___                    Felix-Santos  appeals  his  conviction   and  sentence.          Because his  appeal presents no  substantial, properly cognizable          question, we summarily affirm.  See 1st Cir. R. 27.1.                                          ___                    Felix-Santos  advances  two  principal  assignments  of          error.  First,  he contends  that his guilty  plea resulted  from          trial  counsel's  ineptitude, and  that  he  should therefore  be          permitted  to withdraw it. This contention is simply not ripe for          consideration on direct appeal.  As we recently explained:                    We have  held with a  regularity bordering on                    the monotonous that  fact-specific claims  of                    ineffective  assistance   cannot  make  their                    debut   on   direct   review    of   criminal                    convictions, but, rather, must  originally be                    presented  to, and acted  upon by,  the trial                    court.   See, e.g., United States  v. McGill,                             ___  ____  _____________     ______                    952  F.2d  16,  19  (1st  Cir.  1991); United                                                           ______                                        ____________________               1The four  counts to which Felix-Santos  pled guilty charged          him with conspiring to possess and distribute kilogram quantities          of cocaine  in violation of 21  U.S.C.    841(a)(1)(b)(1)(B)(ii),          846  (count  1),  and  using  telephones  on  three occasions  to          facilitate the conspiracy  in violation of 21 U.S.C.    843(b)(c)          and 18 U.S.C.   2 (counts 5, 6, and 8).                                          2                    States  v. Natanel,  938 F.2d  302, 309  (1st                    ______     _______                    Cir.  1991); cert.  denied,  112 S.  Ct.  986                                 _____  ______                    (1992); United States v. Hunnewell,  891 F.2d                            _____________    _________                    955,  956 (1st  Cir. 1989); United  States v.                                                ______________                    Costa, 890 F.2d 480, 482-83  (1st Cir. 1989);                    _____                    United  States v. Hoyos-Medina,  878 F.2d 21,                    ______________    ____________                    22 (1st Cir. 1989); United States  v. Carter,                                        _____________     ______                    815  F.2d 827,  829 (1st  Cir. 1987);  United                                                           ______                    States v.  Kobrosky, 711 F.2d  449, 457  (1st                    ______     ________                    Cir.  1983).    The  rule  has  a  prudential                    aspect.      Since   claims  of   ineffective                    assistance  involve a  binary analysis    the                    defendant  must  show, first,  that counsel's                    performance  was  constitutionally  deficient                    and, second, that  the deficient  performance                    prejudiced  the  defense,  see Strickland  v.                                               ___ __________                    Washington, 466  U.S. 668, 687 (1984)    such                    __________                    claims  typically  require the  resolution of                    factual issues that  cannot efficaciously  be                    addressed  in   the  first  instance   by  an                    appellate  tribunal.  See  Costa, 890 F.2d at                                          ___  _____                    483;  Hoyos-Medina,  878  F.2d  at  22.    In                          ____________                    addition, the  trial judge, by  reason of his                    familiarity with the case,  is usually in the                    best position to  assess both the  quality of                    the  legal  representation  afforded  to  the                    defendant  in  the  district  court  and  the                    impact    of    any    shortfall   in    that                    representation.   Under  ideal circumstances,                    the court of appeals should have the  benefit                    of this evaluation;  elsewise, the court,  in                    effect, may be playing blindman's buff.          United  States v.  Mala,  7  F.3d  1058,  1063  (1st  Cir.  1993)          ______________     ____          (footnote omitted).                    Appellant's   case  is   emblematic   of  the   reasons          undergirding the rule.  The accusation that counsel blundered was          not voiced  below; the district court  has not spoken to  it; and          unanswered factual  questions abound.  Consequently,  it would be          imprudent to entertain the ineffective assistance claim on direct                                          3          review, and we decline to do so.2                    Felix-Santos'   remaining  contention   implicates  the          sentencing phase.  The  lower court boosted his offense  level by          two levels premised on  his alleged use of a  firearm in relation          to the drug trafficking conspiracy.3   In turn, this  enhancement          increased the guideline sentencing  range and resulted in a  more          onerous sentence. Appellant contends that the court erred in this          respect.  On the  record as it presently stands,  this contention          is untenable.                    We begin  our explanation  by noting that  the district          court's dismissal of count 4 has little bearing on the sentencing          enhancement.   It is firmly  settled that,  under the  sentencing          guidelines, conduct  embodied  in  counts  that  were  originally          charged,  but later dropped,  may nonetheless be  used to upgrade          the  sentencing range  applicable  to the  counts of  conviction.          See, e.g.,  United States v.  Garcia, 954  F.2d 12, 15  (1st Cir.          ___  ____   _____________     ______          1992);  cf. United States v. Mocciola,  891 F.2d 13, 17 (1st Cir.                  ___ _____________    ________          1989)  (enunciating  same  principle  in  respect to  "acquitted"                                        ____________________               2To  be  sure, we  have  occasionally  undertaken review  of          ineffective assistance claims on  direct appeal, even without the          advantage of the district court's views.  See, e.g., Natanel, 938                                                    ___  ____  _______          F.2d at  309.  It is  important to note, however,  that we seldom          travel this route unless  "the critical facts are not  in dispute          and  the  record  is  sufficiently developed  to  allow  reasoned          consideration of the claim."  Id.                                        ___               3U.S.S.G.  2D1.1(b)(1) provides  for a two-level enhancement          of  a defendant's offense level  if a firearm  or other dangerous          weapon was present  during the commission  of a drug  trafficking          offense  unless the  sentencing  court finds  it  to be  "clearly          improbable  that  the weapon  was  connected  with the  offense."          U.S.S.G.  2D1.1, comment. (n.3).                                          4          counts).  Thus,  the fact  that the government  moved to  dismiss          count  4,  even  when  coupled  with  the  fact  that  the  court          acquiesced,  did not  bar  consideration of  the conduct  charged          therein   the use of  a firearm during and in relation  to a drug          trafficking conspiracy   as a basis for elevating the defendant's          offense level.                    Appellant's  assignment of error has another dimension.          He  asserts  that the  court lacked  a  proper factual  basis for          applying the enhancement.   This asseveration, too, is profoundly          flawed.    In the  first  place, appellant  acknowledges  that he          stipulated to the applicability of the enhancement as part of his          plea  bargaining.4   Appellant  did not  move  to set  aside  the          stipulation, and,  therefore, the  sentencing court had  both the          authority  and the right to  give the stipulation  full force and          effect.   See, e.g., United  States v. Adail,  30 F.3d 1046, 1047                    ___  ____  ______________    _____          (8th Cir.), cert. denied, 115 S. Ct. 653 (1994); United States v.                      _____ ______                         _____________          McGill, 952 F.2d  16, 18  (1st Cir. 1991);  Graefenhain v.  Pabst          ______                                      ___________     _____          Brewing Co., 870 F.2d  1198, 1206 (7th Cir. 1989);  United States          ___________                                         _____________          v.  Kulp, 365 F. Supp. 747, 763  (E.D. Pa. 1973), aff'd, 497 F.2d              ____                                          _____          921 (3d Cir. 1974).                    In the second place, the court had before it sufficient                                        ____________________               4While this stipulation does not  appear in the written plea          agreement, the  parties  discussed it  with  Judge Fuste  at  the          change-of-plea hearing.  The  judge summarized the stipulation on          the record  as providing  "that there  is going  to be a  weapons          enhancement for  sentencing purposes."  Appellant  told the judge          that  he  understood  the  stipulation  and was  aware  that  his          sentence  would  "be higher  because of  the  fact that  [he was]          carrying  a  revolver during  the  commission  of a  drug-related          offense."                                          5          information, apart from the stipulation, to enable it to make the          requisite finding.  The  presentence investigation report   which          itself  has evidentiary  effect, see  United States  v. Gonzalez-                                           ___  _____________     _________          Vazquez,  34 F.3d  19, 25  (1st Cir.  1994)  (explaining "[f]acts          _______          contained  in  a  presentence  report  ordinarily  are considered          reliable evidence  for sentencing  purposes");  United States  v.                                                          _____________          Morillo,  8 F.3d  864, 872 (1st  Cir. 1993) (same)    furnished a          _______          basis for  the enhancement.   Moreover, Felix-Santos  admitted to          the  court at the change-of-plea  hearing that there  was a valid          factual predicate  for the stipulation.  This  admission is fully          equivalent to an admission that  he, in fact, bore responsibility          for the revolver.                    We need go  no further.5   For the  reasons stated,  we          affirm  appellant's conviction  and sentence,  without prejudice,          however, to appellant's right to raise his ineffective assistance          of counsel claims, and any other properly cognizable claims, on a          petition for post-conviction relief filed pursuant to 28 U.S.C.            2255.   See, e.g., Mala, 7 F.3d at  1063.  We intimate no opinion                  ___  ____  ____          as to the merit or lack of merit of any such claim(s).          Affirmed.          Affirmed.          ________                                        ____________________               5We  have considered appellant's  bold-faced claims that the          weapons  enhancement  violated  his  rights under  both  the  Due          Process Clause and Fed. R. Crim. P.  32.  We find those claims to          be meritless, and we reject them out of hand.                                          6
