18-2548-cr
United States v. Christian Cardenas

                               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
3rd day of April, two thousand twenty.

Present:    DENNIS JACOBS,
            ROSEMARY S. POOLER,
            SUSAN L. CARNEY,
                        Circuit Judges.
_____________________________________________________

UNITED STATES OF AMERICA,

                                      Appellee,

                          v.                                               18-2548-cr

ROBERT DIAZ, AKA FACEY, AKA FACE,
RENE SANCHEZ, AKA RENNY, PABLO PEREZ,
AKA MENOR, DAVID ALMONTE, AKA ELLI,
ROBERT BOLANOS, AKA RONNY, ROLANDO
PAULINO, AKA SANTANA PAULINO, THERESA KEEFE,
AKA TERRY, NICOLE MUNDERVILLE, AKA NICKI,

                                      Defendants,


CHRISTIAN CARDENAS, AKA CHRIS,
AKA SPOONIE,

                        Defendant-Appellant.
_____________________________________________________
Appearing for Appellant:      Paul J. Angioletti, Staten Island, N.Y.

Appearing for Appellee:       Jane Kim, Assistant United States Attorney (Elizabeth Hanft, Jason
                              Richman, Daniel B. Tehrani, on the brief), for Geoffrey S. Berman,
                              United States Attorney for the Southern District of New York,
                              New York, N.Y.

Appeal from the United States District Court for the Southern District of New York (Nathan, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment be and it hereby is AFFIRMED.

         Defendant-Appellant Christian Cardenas appeals from the August 7, 2018 judgment
entered in the United States District Court for the Southern District of New York (Nathan, J.)
sentencing him principally to 96 months’ imprisonment and 4 years’ supervised release. Cardenas
was sentenced following a guilty plea to one count of conspiracy to distribute and possess with
intent to distribute narcotics, in violation of 21 U.S.C. § 841(b)(1)(A). We assume the parties’
familiarity with the underlying facts, procedural history, and specification of issues for review.

         Cardenas argues on appeal that he received ineffective assistance of counsel because his
trial attorney conceded that Cardenas’s drug distribution resulted in serious bodily injury; failed
to investigate the quantity of drugs attributable to Cardenas; and failed to uncover that the
government presented false evidence. When faced with a claim of ineffective assistance of
counsel on direct appeal, this Court may “(1) decline to hear the claim, permitting the appellant
to raise the issue as part of a subsequent [motion] . . . pursuant to 28 U.S.C. § 2255; (2) remand
the claim to the district court for necessary factfinding; or (3) decide the claim on the record
before [the Court].” United States v. Morris, 350 F.3d 32, 39 (2d Cir. 2003). Ordinarily, “a
motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective
assistance.” Massaro v. United States, 538 U.S. 500, 504 (2003); see also United States v. Khedr,
343 F.3d 96, 99-100 (2d Cir. 2003). This is because “a trial record [is] not developed precisely
for the object of litigating or preserving the [ineffective assistance] claim and [is] thus often
incomplete or inadequate for this purpose.” Massaro, 538 U.S. at 504-05.

        We decline to hear Cardenas’s claims because they are not fit for direct appellate review.
Cardenas faults his attorney’s decision not to challenge the quantity of drugs attributable to him,
but he could very well have had strategic reasons for that decision. Our Court is ill-equipped to
address claims of this nature on direct appeal, without trial counsel having had an opportunity to
explain his choices. See Sparman v. Edwards, 154 F.3d 51, 52 (2d Cir. 1998) (explaining that,
“except in highly unusual circumstances,” a lawyer charged with ineffectiveness should be given
“an opportunity to be heard and to present evidence, in the form of live testimony, affidavits, or
briefs”). Accordingly, we dismiss Cardenas’s claims without prejudice.




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        We have considered the remainder of Cardenas’s arguments and find them to be without
merit. Accordingly, the judgment of the district court hereby is AFFIRMED.



                                                 FOR THE COURT:
                                                 Catherine O’Hagan Wolfe, Clerk




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