11-5187-cr
United States v. DeJesus

                            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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 29th day of January, two thousand thirteen.
PRESENT: PIERRE N. LEVAL,
         REENA RAGGI,
                    Circuit Judges,
         KENNETH M. KARAS,
                    District Judge.*
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UNITED STATES OF AMERICA,
                                 Appellee,
                           v.                                            No. 11-5187-cr
GEORGE DEJESUS,
                                 Defendant-Appellant.
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APPEARING FOR APPELLANT:                          DANIEL M. PEREZ, Esq., Newton, NJ.
APPEARING FOR APPELLEE:                           MARC P. BERGER, (Justin S. Weddle, on the
                                                  brief), Assistant United States Attorneys, for Preet
                                                  Bharara, United States Attorney for the Southern
                                                  District of New York, New York, New York.




          *
         The Honorable Kenneth M. Karas, of the United States District Court for the
Southern District of New York, sitting by designation.
       Appeal from a judgment of the United States District Court for the Southern District

of New York (William H. Pauley, Judge).

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

DECREED that the judgment entered on October 12, 2007, and the order denying DeJesus’s

motion for resentencing entered on November 28, 2011, are AFFIRMED.

       Defendant George DeJesus, who is serving consecutive 300- and 60-month prison

terms for conspiracy to distribute heroin, see 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846, and

carrying and brandishing a firearm in connection with drug trafficking, see 18

U.S.C. § 924(c)(1)(A)(ii), appeals this sentence, arguing that his attorney was constitutionally

ineffective on remand in failing to move for resentencing without delay in light of our

decision in United States v. Williams, 558 F.3d 166, 167–68 (2d Cir. 2009). Although a

petition pursuant to 28 U.S.C. § 2255 is generally the preferred vehicle for asserting an

ineffectiveness claim, see Massaro v. United States, 538 U.S. 500, 504–05 (2003), where,

as here, the record permits us to resolve the claim without doubt, we may do so on direct

appeal, see United States v. Khedr, 343 F.3d 96, 100 (2d Cir. 2003); accord United States v.

Hasan, 586 F.3d 161, 170 (2d Cir. 2009). In reviewing DeJesus’s Sixth Amendment claim

de novo, see Morales v. United States, 635 F.3d 39, 43 (2d Cir. 2011), we assume the parties’

familiarity with the facts and records of prior proceedings, which we reference only as

necessary to explain our decision to affirm.




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       A defendant claiming ineffective assistance of counsel must show that (1) his lawyer’s

performance fell below an objective standard of reasonableness, and (2) defendant thereby

suffered actual prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984); accord

Morales v. United States, 635 F.3d at 43. To satisfy the first requirement, DeJesus points to

his lawyer’s failure to seek resentencing in the nine-month interval between the April 7, 2009

issuance of this court’s mandate remanding his case and the Supreme Court’s January 25,

2010 grant of certiorari in Abbott v. United States, 131 S. Ct. 18 (2010), a case that

ultimately abrogated our decision in Williams, see id. at 23–24. We need not decide whether

this omission was objectively unreasonable because DeJesus cannot show a reasonable

probability that, but for counsel’s conduct, the result on resentencing would have been

different, as required to demonstrate prejudice. See Strickland v. Washington, 466 U.S. at

694; United States v. Brown, 623 F.3d 104, 112 (2d Cir. 2010).

       First, DeJesus cannot show that he would, in fact, have been sentenced before the

grant of certiorari in Abbott, given (1) the pendency of a petition for rehearing en banc of

Williams in this court as of June 22, 2009, and (2) the United States Attorney’s routine

requests to delay resentencing pursuant to Williams remands pending further review in this

court and the Supreme Court.

       Second, and in any event, DeJesus cannot show that, if resentenced earlier, he would

have received a shorter term of incarceration. This court’s remand order did not require the

district court to reduce DeJesus’s total prison sentence; it merely remanded “to give the


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district court the opportunity to resentence DeJesus in light of our holding in Williams.”

United States v. DeJesus, 314 F. App’x 386, 389 (2d Cir. 2009) (emphasis added). Thus,

while DeJesus could certainly have argued for concurrent sentences, Williams neither

required the district court to grant that request, nor precluded it from using concurrent

sentences to achieve the same total incarceratory term it had originally imposed through

consecutive sentences.

       Third, and most important, DeJesus cannot show that if he had received a reduced

sentence on remand, that sentence could have survived government appeal in light of the

grant of certiorari and ultimate decision in Abbott.

       In sum, because DeJesus cannot demonstrate prejudice, his ineffective assistance of

counsel claim fails. We have considered DeJesus’s remaining arguments and find them to

be without merit. Accordingly, the district court’s judgment is AFFIRMED.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




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