12-1120-cr
United States v. Pozuelos-Morales

                               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 the 13th
day of June, two thousand thirteen.

Present:    AMALYA L. KEARSE,
            ROSEMARY S. POOLER,
            DEBRA ANN LIVINGSTON,
                        Circuit Judges.
_____________________________________________________

UNITED STATES OF AMERICA,

                                    Appellee,

                            -v-                                               12-1120-cr

WENCESLADO POZUELOS-MORALES, AKA Jose Morales,
AKA Wemceslao Posuellos-Morales, AKA Jose Enrique Moralez,

                        Defendant-Appellant.
_____________________________________________________

Appearing for Appellant:                   Eileen F. Shapiro, Brooklyn, NY

Appearing for Appellee:                    Preet Bharara, United States Attorney for the Southern
                                           District of New York, Kathryn M. Martin, Brent S. Wible,
                                           Assistant United States Attorneys, New York, NY

        Appeal from the United States District Court for the Southern District of New York
(Seibel, J.).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Wenceslado Pozuelos-Morales appeals from his judgment of conviction entered March
15, 2012, alleging ineffective assistance of counsel at his sentencing hearing. We assume the
parties’ familiarity with the underlying facts, procedural history, and specification of issues for
review.

         “When faced with a claim for ineffective assistance of counsel on direct appeal, we may:
(1) decline to hear the claim, permitting the appellant to raise the issue as part of a subsequent
petition for writ of habeas corpus 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 us.” United
States v. Morris, 350 F.3d 32, 39 (2d Cir. 2003). While “ineffective-assistance claims ordinarily
will be litigated in the first instance in the district court, the forum best suited to developing the
facts necessary to determining the adequacy of representation during an entire trial,” Massaro v.
United States, 538 U.S. 500, 501 (2003), this Court will reach an ineffective assistance claim that
“is both straightforward and susceptible to resolution as a matter of law.” United States v. De La
Pava, 268 F.3d 157, 163 (2d Cir. 2001) (internal quotation marks and alteration omitted). “If an
ineffective assistance claim brought on direct appeal is not plausible, we can reject it without any
further factual development.” Ellerby v. United States, 187 F.3d 257, 259 (2d Cir. 1998).

       “In order to prove ineffective assistance of trial counsel, [Pozuelos-Morales] must show
both that counsel’s representation was unreasonable under the ‘prevailing professional norms,’
and that, but for counsel’s incompetence, there is a reasonable probability that ‘the result of the
proceeding would have been different.’” United States v. Matos, 905 F.2d 30, 32 (2d Cir. 1990)
(quoting Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)). “Actions and/or omissions
taken by counsel for strategic purposes generally do not constitute ineffective assistance of
counsel.” Gibbons v. Savage, 555 F.3d 112, 122 (2d Cir. 2009) (citing Strickland, 466 U.S. at
690-91).

         Current counsel argues that four actions by trial counsel amounted to ineffective
assistance: (1) failure to submit a sentencing memorandum; (2) failure to direct the district court
to U.S.S.G. § 5H1.3 as grounds for a downward departure; (3) statements made by counsel
during the sentencing proceeding; and (4) failure to obtain Pozuelos-Morales’s medical records.
A review of the sentencing proceeding makes clear that counsel’s decision not to submit a
sentencing memorandum and not to seek a downward departure were strategic decisions that do
not constitute ineffective assistance of counsel. See Gibbons, 555 F.3d at 122. As to the third
argument, we conclude that, viewed in the context of sentencing counsel’s effort to persuade the
district court to impose on Pozuelos-Morales a sentence that would run concurrently with the
sentence he was then serving, the arguments of counsel conform to “prevailing professional
norms” and do not constitute ineffective assistance. See Strickland, 466 U.S. at 688.

        As to current counsel’s final argument regarding trial counsel’s failure to obtain
Pozuelos-Morales’s medical records, all of the pertinent information that would have been
included in the records was known to the lower court and both parties through the detailed
Presentence Report. Current counsel does not point to any facts that would have supplemented
the record by including the actual medical reports. Instead, counsel only argues that the records

                                                  2
would have “humanized [Pozuelos-Morales] in the eyes of the sentencing judge.” Appellant’s
Br. at 13. As this information was already known to the sentencing judge, it was plainly within
“prevailing professional norms” for trial counsel not to seek out redundant material. Moreover,
even assuming that prevailing norms mandated that trial counsel obtain the medical records,
there has been absolutely no showing of prejudice. Here, the district court had knowledge of and
expressly considered the facts related to Pozuelos-Morales’s background and physical and
mental health. Therefore, we conclude that trial counsel was not constitutionally ineffective.

       We have considered Pozuelos-Morales’s remaining 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




                                               3
