
USCA1 Opinion

	




          April 28, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1761                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  ALFREDO MALDONADO,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Ralph J. Perrotta for appellant.            _________________            Margaret  D. McGaughey,  Assistant  United States  Attorney,  with            ______________________        whom Richard  S. Cohen, United  States Attorney, Jonathan  R. Chapman,             _________________                           ____________________        Assistant U.S. Attorney, and F. Mark Terison, Assistant U.S. Attorney,                                     _______________        were on brief for appellee.                                 ____________________                                 ____________________               Per Curiam.  Appellant  Maldonado contends that his sentence               __________          on a  drug distribution charge  was tainted by  false information          presented at his  sentencing hearing.   He claims  that both  the          prosecutor and  defense counsel should have  brought the problems          to the attention of the sentencing judge, and their failure to do          so  constituted,  respectively,  a  denial  of  due  process  and          ineffective assistance of counsel.  We affirm.               This case arises  from a drug conspiracy that  extended from          the summer of  1990 through spring 1991,  involving Maldonado and          two  other individuals,  both  of whom  testified at  Maldonado's          sentencing hearing.   Their  testimony depicted Maldonado  as the          organizer or supervisor of  the endeavor.   They said he was  the          source of all the cocaine they sold and, at least for part of the          conspiracy period, he set the prices and controlled the proceeds.          The  two men also testified to the amounts of cocaine involved in          the  conspiracy, describing  both amounts  sold to  customers and          amounts delivered by or obtained through Maldonado.                The testimony on drug  amounts was not precisely consistent,          and  at times was confusing.   The district  court was satisfied,          however,  that  Maldonado  was  responsible  for  at  least  five          kilograms, the  lowest amount necessary to  trigger offense level          32  under the Sentencing Guidelines.  Based on the two witnesses'          testimony,  the  court  also   found  that  Maldonado  served  as          organizer or supervisor of  the conspiracy.  The court  sentenced          Maldonado to 121  months, the  shortest possible  term under  the          relevant guideline.               Maldonado identifies three factual  flaws in his sentencing:          (1)  the  government  misrepresented   the  nature  of  its  plea          agreement with the  primary witness,  co-conspirator Lemieux,  by          stating that Lemieux's culpability was limited to the quantity of          drugs known  at the time of his indictment; (2) the court was not          apprised that, contrary to his statements at the hearing, Lemieux          had done extensive  drug dealing before  the conspiracy at  issue          here;  and (3)  the  court  also  did  not  know  that  Lemieux's          testimony at the hearing about the number of cocaine customers he          could identify by  name differed from  earlier statements he  had          given to authorities.               Maldonado  asserts that  the lawyers'  failure to  alert the          district  court to  the true  circumstances may  have  caused the          court to overvalue Lemieux's  testimony and, therefore, to impose          a higher sentence.  Additionally, he criticizes defense counsel's          failure to impeach Lemieux's credibility on the quantity of drugs          dealt  during   the  conspiracy.    Maldonado   claims  that  the          prosecutor's  omissions  denied  him  due process  and  that  the          defense   attorney's  deficiencies  deprived  him  of  meaningful          representation by  counsel.  Consequently, he  maintains that his          sentence must be vacated.               This appeal is unavailing  for a number of reasons.   First,          it  relies  in  substantial  part  on  documents  that  were  not          presented  to the  district court.   Maldonado's  contention that          information about  Lemieux's prior drug dealing  was omitted from          the sentencing hearing and that Lemieux testified  inconsistently                                         -3-          about  his  knowledge  of  customer  names  is  based  on   prior          statements Lemieux  gave to authorities.   None of  these unsworn          statements  was made a  part of  the record  below.   Rather than          asking this court to consider these interviews for the first time          on  appeal,  Maldonado  should  have brought  them  first  to the          attention of  the trial court, see  Eagle-Picher Industries, Inc.                                         ___  _____________________________          v. Liberty Mutual Insurance Co., 682 F.2d 12, 22 &  n.8 (1st Cir.             ____________________________          1982),  presumably in  the form  of a  motion under  28 U.S.C.             2255.1               Were we to consider the interviews and rule on the merits of          his claims, Maldonado would fare no better.  The documents do not          evince  perjury  by Lemieux  or undermine  in  any other  way the          district court's  findings on  the amount  of drugs involved  and          Maldonado's  role.    The  testimony of  Lemieux  highlighted  by          Maldonado  reasonably is understood not as a denial of prior drug          dealing  but simply as confirmation of the date the conspiracy at          issue began.  See  Transcript of Sentencing Hearing (Tr.)  at 9.2                        ___          As  for the  customer  names,  a  year's  lapse  in  time  and  a                                        ____________________               1 We  recognize that  Maldonado's appeal  rests on  the fact          that these documents  were not presented  to the district  court.          To the extent the omission of the documents gives rise to a claim          of  ineffective  assistance  of  counsel,  however, Maldonado  is          obliged under  longstanding precedent to present  the claim first          to the district court.  See infra at 5-7.  The due process claim,                                  ___ _____          relying  as  it does  on the  alleged  deception of  the district          court, strikes  us as similarly inappropriate  for initial review          by this court.               2 In fact, although the point was not developed, Lemieux was          asked by defense counsel whether he had been dealing drugs before          he became involved in  this conspiracy.  He answered  "yes."  See                                                                        ___          Tr. at 27.                                         -4-          difference  in  the  questions   asked  account  for  the  slight          variations in Lemieux's statements.3               Second, Maldonado's attempt  to create  controversy at  this          juncture  over the  nature  of Lemieux's  plea agreement  plainly          lacks substance.   Although the  government's characterization of          the agreement was muddled, the district court focused on the very          point  about  which Maldonado  is  concerned  -- the  discrepancy          between the  amounts of  cocaine that Lemieux  attributed to  the          conspiracy  in his testimony and the much smaller amount on which          he was sentenced.  See Tr.  at 85-88.  We are confident that  the                             ___          court  understood  the  prosecutor  to say  only  that  Lemieux's          sentence likely was  based on the amount of  cocaine known to the          government at the time he was sentenced.  In any event, the court          had the agreement before it and was in no way deceived.               Third, the claim of ineffective assistance of counsel is not          properly  before  us  as  we  ordinarily  do  not  consider  such          complaints when raised for the first time on direct  appeal.  See                                                                        ___          United  States v.  Georgacarakos,  No. 92-1890,  slip  op. at  18          ______________     _____________          (March 30, 1993);  United States v. McGill, 952 F.2d  16, 19 (1st                             _____________    ______          Cir. 1991).   This is not the "exotic exception" to the rule, see                                                                        ___          McGill,  952  F.2d  at  19,  where  the  record  is  sufficiently          ______          developed to  allow reasoned  consideration of  the claim by  the          appeals  court  in the  first instance.    Indeed, this  claim is                                        ____________________               3 This case  does not involve allegations  of either delayed          disclosure   or  nondisclosure   of  Lemieux's   statements,  and          Maldonado's reliance  on United States  v. Osorio, 929  F.2d 753,                                   _____________     ______          758  (1st Cir. 1991) and United States v. Perkins, 926 F.2d 1271,                                   _____________    _______          1275 (1st Cir. 1991), is therefore misplaced.                                         -5-          particularly suited  to resolution by the  district court because          its  gist  is  that  that  court  was  led  astray  by  counsel's          performance.                Once  again, even if review  were appropriate, we would find          no constitutional error.  During cross-examination, trial counsel          appropriately focused on Lemieux's testimony regarding the amount          of cocaine and Maldonado's role in the conspiracy.  Maldonado, in          fact, acknowledges  that the attorney reasonably  "dealt with the          crucial  issue of quantity by accepting the veracity of that part          of Lemieux's testimony . . .  most favorable to his client . .  .          ."   See Brief at 14  ("These arguments were certainly  valid . .               ___          ..").   But he goes on  to argue that a  more direct challenge to          Lemieux's testimony should  have been made based on the witness's          prior  statements  to  authorities.   Those  statements, however,          arguably lend support to  the government's calculation of cocaine          amounts.4    The decision  not  to utilize  them  therefore would                                        ____________________               4 Our computations  show that the  grand jury testimony  and          reports filed by  two agents for the  Bureau of Intergovernmental          Drug Enforcement supported substantially more than the minimum of          five kilograms of cocaine found by the district court.               Maldonado  relies in  particular on  Lemieux's statement  to          Agent  Kelly that Maldonado delivered  1/2 to 1  pound of cocaine          every  two weeks for about 32  weeks.  See App. at  9.  Using the                                                 ___          smaller estimate, Maldonado asserts that this produces only about          3.6 kilograms, and  that this amount is far less  than the lowest          quantity to which  Lemieux testified at the  hearing.  But in  so          arguing,  Maldonado is  reading  Kelly's memorandum  selectively.          The document also reports Lemieux's statement that  he made trips          to  Providence and New York to pick up approximately 4 additional          kilograms from Maldonado.  See App. at 9-10.                                     ___               Maldonado  also  points  to Lemieux's  statements  to Agents          Kelly  and Small  concerning a  hiatus in  drug dealing  in early          1991,  contending that  the Small  report describes  a four-month          period from January through April while the Kelly report notes an          approximately two-month break.   We do not read the  memoranda as                                         -6-          indicate sound strategy.   See Isabel v. United States,  980 F.2d                                     ___ ______    _____________          60, 65 (1st  Cir. 1992)  (quoting Barrett v.  United States,  965                                            _______     _____________          F.2d 1184,  1193 & n.18  (1st Cir. 1992))  ("[W]e may not  find a          deficient  professional performance  in the  constitutional sense          unless the challenged decisions were not `plausible options.'").               The other  document upon which Maldonado's claims rest is an          Immigration and Naturalization  Service investigative  memorandum          detailing Lemieux's prior  drug dealing activities.  At  the time          of  sentencing,  the  district  court knew  that  Lemieux  was  a          convicted drug dealer testifying as part of a plea agreement with          the  government.  We fail  to see how  the peripheral information          that Lemieux also had dealt drugs independently in the past could          have affected materially the district court's fact-finding on the          amount  of  cocaine  and  Maldonado's role  in  the  conspiracy.5          Maldonado  falls far  short  of demonstrating  that  "there is  a          reasonable  probability  that, but  for  counsel's unprofessional          errors,  the result of the proceeding would have been different."          Strickland v. Washington, 466 U.S. 668, 694 (1984).          __________    __________               Finally,  we note that, at bottom, this appeal is a creative          attempt  to challenge  as a  matter of  law the  district court's          unassailable factual findings that Maldonado was the leader  of a                                        ____________________          necessarily  inconsistent.   Small's  report  describes the  time          frame as  "between the months of January 1991 to the beginning of          April 1991," see App. at 4 -- which plainly excludes the month of                       ___          April and  thus could be read to mean only the two months between                                                                    _______          January and April.               5 Moreover,  as previously noted, Lemieux  did admit earlier          dealing.                                         -7-          conspiracy involving the distribution  of at least five kilograms          of cocaine.  In  our view, Maldonado received fair  treatment and          was represented by competent  counsel.  Accordingly, his sentence          is unchallengeable.               Affirmed.               ________                                         -8-
