UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                              CONN, HOFFMAN, and GIFFORD
                                 Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                     Specialist DIEGO M. VARGASPUENTES
                          United States Army, Appellant

                                       ARMY 20091096

                Headquarters, 8th Theater Sustainment Command
                        Donna M. Wright, Military Judge
            Colonel James W. Herring, Staff Judge Advocate (pretrial)
          Colonel Lisa Anderson-Lloyd, Staff Judge Advocate (post-trial)


For Appellant: Captain A. Jason Nef (argued); Colonel Mark Tellitocci, JA;
Lieutenant Colonel Matthew M. Miller, JA; Major Grace M. Gallagher, JA; Captain
A. Jason Nef, JA (on brief in reconsideration); Major Grace M. Gallagher, JA;
Captain A. Jason Nef, JA (on brief).

For Appellee: Captain Stephen E. Latino, JA (argued); Colonel Norman F.J. Allen,
III, JA; Lieutenant Colonel Martha L. Foss, JA; Major Christopher B. Burgess, JA;
Captain Stephen E. Latino, JA (on reply brief in reconsideration); Major Lisa
Gumbs, JA (on brief).


                                          24 May 2011

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                   OPINION OF THE COURT ON RECONSIDERATION
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GIFFORD, Judge:

       A military judge sitting as a general court-martial convicted appellant,
consistent with his pleas, of wrongful distribution of a controlled substance (three
specifications) and wrongful possession of a controlled substance, in violation of
Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a [hereinafter
UCMJ]. The military judge sentenced appellant to a bad-conduct discharge,
confinement for two years, and reduction to Private (E-1). The convening authority
limited confinement to fifteen months, in accordance with a pretrial agreement, and
otherwise approved the adjudged sentence.
VARGASPUENTES – ARMY 20091096

       This case is before us for review pursuant to Article 66(c), UCMJ. Appellant
presented no specific assignment of errors to this Court, but did submit matters
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We find none of
the issues appellant raised pursuant to Grostefon to merit relief, although we discuss
below the issue of ineffective assistance of counsel.

                                   BACKGROUND

       In his Grostefon matters, appellant asserted, inter alia, that his trial defense
counsel - Captain (CPT) KH - failed to inform him prior to trial of the consequences
of his pleading guilty on his ostensible efforts to obtain United States citizenship.
Appellant submitted his Grostefon matters in the form of a typewritten, unsworn,
unsigned document. In that document, appellant alleged he asked CPT KH during a
pretrial meeting whether the Immigration and Naturalization Service would find out
about the charges against him, and she responded "it depends on how the court-
martial goes." 1 Appellant also asserts that on the day of trial he again asked CPT
KH about the impact of the charges on his efforts to become a citizen and she "gave
no advice to appellant on the matter."

       This Court affirmed the findings and sentence in appellant's case, expressly
noting its decision of his case based on the facts in the record of trial and
consideration of the matters he submitted pursuant to United States v. Grostefon.
Appellant subsequently sought reconsideration of this Court's decision and submitted
an affidavit in support. As discussed below, the affidavit alleged ineffective
assistance of counsel although it had modified some of the details regarding what
appellant alleged he told CPT KH. This Court denied the request for
reconsideration, as appellant predicated his request primarily on the erroneous
assertion that this Court had failed to consider his Grostefon matters. 2

      As a result of the Supreme Court's subsequent decision in Padilla v. Kentucky,
__ U.S. __, 130 S. Ct. 1473 (2010), this Court sua sponte ordered reconsideration of
appellant's case and sua sponte granted appellant's motion to attach. As discussed
below, the Supreme Court's decision in Padilla directly impacted the analytical
framework for reviewing claims of ineffective assistance of counsel claims in the
context of guilty pleas by non-United States citizens. See generally Padilla, __ U.S.
__, 130 S. Ct. at 1482-87.

1
 Appellant does not state at what stage of pretrial discussions this alleged
conversation occurred, e.g., fact-finding, negotiations, etc.
2
 This Court also denied the attendant motion to attach, although it expressly noted
appellant could submit a request for reconsideration, as appropriate, in accordance
with the Court's rules.



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VARGASPUENTES – ARMY 20091096


        In the sworn statement filed with this Court, appellant avers that when he met
with CPT KH during a pretrial meeting, he "specifically asked her on (sic) how my
charges would affect my citizenship eligibility." Appellant states that CPT KH
stated "it all depended on the outcome of [his] court-martial." Appellant further
stated that on the day of trial he "brought up the same question on the effect of this
trial on [his] citizenship." Appellant alleges that it was at this time that CPT KH
"told [him] the severity of the charges [and that] she did not remember when [he]
previously brought this issue up about not [being] a United States citizen." We note
appellant's sworn statement materially varies from his Grostefon matters regarding
what occurred between he and CPT KH at the one pretrial session and on the day of
trial regarding the instant issue.

      As a result of this Court's reconsideration, CPT KH filed an affidavit
addressing appellant's allegations. In relevant part, CPT KH highlights her
numerous pretrial meetings (sixteen dates listed) with appellant. Captain KH
emphasizes that at no time during any of those pretrial sessions or on the day of trial
did appellant inform her that he was not a United States citizen or that he was
concerned about the impact that his guilty plea might have on his citizenship status.

       Captain KH further relates that during pretrial sessions, appellant's focus was
on "limiting his exposure to extended confinement as a result of a conviction."
Captain KH notes the "possibility of extended jail time was the main factor in
[appellant's] desire to plead guilty with the protection of a pretrial agreement." In
so doing, CPT KH notes the "extensive evidence" in the case, the "likelihood that
the government would secure a conviction was highly likely, if not certain," and
briefly delineates the evidence in the case which supports her conclusion (e.g., a
"source" cooperating with government agents and government agents purchased the
various drugs from appellant and appellant's confession). Captain KH avers that
nothing in her discussions with appellant or his personnel records made her aware
that he was not a United States citizen.

       Captain KH also comments she had numerous post-trial contacts with
appellant and (in effect) he did not inform her of his non-citizen status until after
several interactions and several weeks. Captain KH discusses her efforts to mitigate
the impact of appellant's conviction. In support of her claim that she was not aware
of appellant's non-United States citizen status until post-trial, CPT K.H. tenders a
copy of a letter from appellant's wife - a fellow United States Army soldier. The
letter was submitted to the convening authority as part of appellant's Rule for
Courts-Martial 1105 and 1106 matters and, inter alia, advises the convening
authority:

             I would like to bring to your attention something that
             makes this situation a little bit out-of-the-ordinary.



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VARGASPUENTES – ARMY 20091096

             Unfortunately, my husband is not a U.S. citizen. He had
             planned to apply for citizenship while serving, but never
             got around to doing so. He also did not make his legal
             counsel aware of this fact during their pre-trial preparation
             meetings, and only made them aware after all was said and
             done.

      Captain KH plainly states that appellant's "assertions that he asked me about
the impact of his guilty plea on his citizenship status are not true. He never
informed me about his citizenship concerns at any time prior to pleading guilty."

       Appellant requests this Court order relief in the form of setting aside the
findings and sentence. In the alternative, appellant requests this Court order an
evidentiary hearing pursuant to United States v. DuBay, 37 C.M.R. 411 (C.M.A.
1967).

                                          LAW

       "Members of the armed forces are entitled to the effective assistance of
counsel." United States v. Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007) (citing United
States v. Scott, 24 M.J. 186, 187-88 (C.M.A. 1987); U.S. Const. amend. VI; Article
27(b), UCMJ (10 U.S.C. § 827(b)). Claims of ineffective assistance of counsel are
reviewed de novo. Tippit, 65 M.J. at 76 (citing United States v. Perez, 64 M.J. 239,
243 (C.A.A.F. 2006)). The Supreme Court held, however, a reviewing court
examining a claim of ineffective assistance of counsel "must indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable
professional assistance." Strickland v. Washington, 466 U.S. 668, 689 (1984).

       In Strickland, the Supreme Court established the now long-standing two-
pronged standard for analyzing claims of ineffective assistance of counsel. Id. at
687. To overcome the presumption of competence, an appellant must establish: "(1)
a deficiency in counsel's performance that is 'so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment'; 3 and
(2) that the 'deficient performance prejudiced the defense . . . [through] errors . . . so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable." 4

3
 In Strickland, the first prong requires the examining court to determine whether a
challenged counsel's performance "fell below an objective standard of
reasonableness." Strickland, 466 U.S. at 688.
4
 Under Strickland, the second prong requires "a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different." Id. at 694.



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VARGASPUENTES – ARMY 20091096

United States v. Moulton, 47 M.J. 227, 229 (C.A.A.F. 1997) (quoting Strickland, 466
U.S. at 687).

       In Hill v. Lockhart, the Supreme Court examined a claim of ineffective
assistance of counsel in the context of a defendant who pled guilty. 474 U.S. 52
(1985). In Hill, the Supreme Court found the two-pronged standard from Strickland
remains the standard when examining ineffective assistance of counsel claims in the
guilty plea context. Hill, 474 U.S. at 59-60. In Hill, the Court nevertheless
provided interpretative guidance of the Strickland standard specific to guilty plea
contexts. Hill, 474 U.S. at 59-60.

       The Supreme Court held that the first prong of the Strickland test remains
"nothing more than a restatement of the standard of attorney competency"
established by Supreme Court precedent. Id. In that regard, in Strickland the
Supreme Court found that when analyzing the first prong (i.e., constitutional
deficiency) in its two prong standard, "[t]he proper measure of attorney performance
remains simply reasonableness under prevailing professional norms." Strickland,
466 U.S. at 688.

       Distinct from its "status quo" interpretation regarding the first prong of
Strickland, however, in Hill the Supreme Court modified the second prong of
Strickland to "[focus] on whether counsel's constitutionally ineffective performance
affected the outcome of the plea process." Hill, 474 U.S. at 60 (emphasis added).
See also United States v. Ginn, 47 M.J. 236, 247-48 (C.A.A.F. 1997); Tippit, 65 M.J.
at 77. Restated, an appellant "must show that there is a reasonable probability that,
but for counsel's errors, he would not have pleaded guilty and would have insisted
on going to trial." Hill, 474 U.S. at 59. See also United States v. Alves, 53 M.J.
286, 289 (C.A.A.F. 2000) and Tippit, 65 M.J. at 77. The test is objective. Hill, 474
U.S. at 60.

       In Padilla v. Kentucky, the Supreme Court provided further interpretive
guidance for analyzing ineffective assistance of counsel claims in the context of
guilty pleas when non-United States citizen defendants are at issue. At issue in
Padilla was a claim of non-United States citizen (Padilla) that his counsel was
ineffective in failing to advise him that his guilty plea would have adverse
immigration consequences. Notably, in Padilla, the Supreme Court reiterated that
the first prong of Strickland was "constitutional deficiency" and repeated that when
analyzing the prong: "[t]he proper measure of attorney performance remains simply
reasonableness under prevailing professional norms. __ U.S. __, 130 S. Ct. at 1482
(quoting Strickland, 466 U.S. at 688). The Court then found "[t]he weight of
prevailing professional norms supports the view that counsel must advise her client
regarding the risk of deportation," although it is recognized that many counsel would
not be well versed in immigration law. Id. at 1482-83. Thus, Padilla held (in
effect) that when the consequences of the guilty plea vis-à-vis deportation are



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VARGASPUENTES – ARMY 20091096

unclear, counsel must do no more than advise, inter alia, that a guilty plea may carry
an adverse risk regarding deportation; when the consequences of the guilty plea vis-
à-vis deportation are truly clear, however, the duty to give correct advice is "equally
clear." Id. 5

                                    DISCUSSION

       In the case sub judice, appellant claims that his counsel was ineffective by
failing to inform him of the consequences of his guilty plea on his efforts to obtain
citizenship. In support of his claim, appellant avers in two separate documents - one
document being sworn - that he told CPT KH prior to and on the day of trial that he
was not a citizen and questioned her about the impact of his guilty plea. Contrary to
appellant's claims, CPT KH asserts that appellant made no mention of his citizenship
status prior to or on the day of trial and expressed no concerns related to his
citizenship. Captain KH notes that nothing in her discussions with appellant or his
personnel records made her aware that he was not a United States citizen. 6

       "When challenging the performance of counsel, the defense bears the burden
of establishing the truth of the factual allegations that would provide the basis for
finding deficient performance." Tippit, 65 M.J. at 76 (citing United States v. Polk,
32 M.J. 150, 153 (C.M.A. 1991)). When there are conflicting post-trial affidavits in
a case, the reviewing court must resolve the conflict under the principles articulated
in Ginn, 47 M.J. at 248. In this case, as discussed below, we find the facts alleged
by appellant, even if resolved in his favor, would not result in relief as he has failed
to establish prejudice under the strict standard established in Strickland and its



5
  In Padilla, the Supreme Court found that based on the facts of that case the
relevant federal law regarding the "removal" consequences for petitioner Padilla's
conviction was clear. __ U.S. __, 130 S. Ct. at 1483. Thus, counsel's failure to
provide correct advice to Padilla regarding the presumptively mandatory deportation
consequences of his guilty plea amounted to constitutionally deficient advice under
prevailing professional norms. Id. The issue of whether Padilla satisfied the second
prong of Strickland (i.e., prejudice) was remanded to the lower court. Id. at 1483-
84.
6
  The record contains information that is relevant to appellant's country of origin
(e.g., Block IV, Enlisted Record Brief and appellant's acknowledgment of his birth
country in his DA Form 2823). The information does not establish, however,
appellant is not a United States citizen, although it is potentially relevant to the
issue of counsel's duty to investigate. See Strickland, 466 U.S. 690-91. Because we
resolve this issue based on prong two of Strickland, however, we do not
substantively address this issue.



                                           6
VARGASPUENTES – ARMY 20091096

progeny. Thus, we may resolve appellant's claim without resolving the factual
dispute. Id. 7

       In examining appellant's claim, "we need not determine whether any of the
alleged errors [in counsel's performance] establish [] constitutional deficiencies
under the first prong of Strickland . . . [if] any such errors would not have been
prejudicial under the high hurdle established by the second prong of Strickland."
Tippit, 65 M.J. at 77 (quoting United States v Saintaude, 61 M.J. 175, 183 (C.A.A.F.
2005). Appellant claims that he would not have pled guilty but for the defective
advice of CPT KH in failing to inform him of the impact of his guilty plea on his
citizenship status. See Hill, 474 U.S. 59-60. In support of his contention, appellant
stated that his wife and son were in the United States and he would not have
jeopardized his status in the United States by pleading guilty. Appellant does not
otherwise address why he would not have pled guilty and insisted on going to trial.
Considering the evidence put forth by appellant and for the reasons set forth below,
we conclude appellant has failed to demonstrate that there is a reasonable
probability that, assuming counsel committed error, he would not have pleaded
guilty and would have insisted on going to trial.

      The federal immigration statute pertinent to appellant's case is 8 U.S.C. §
1227(a)(2)(B)(i). Title 8, Section 1227(a)(2)(B)(i), provides (in relevant part):

      Any alien who at any time after admission has been convicted of a violation
      of (or a conspiracy or attempt to violate) any law or regulation of a State, the
      United States, or a foreign country relating to a controlled substance (as
      defined in section 802 of Title 21), 8 other than a single offense involving
      possession for one's own use of 30 grams or less of marijuana, is deportable.

        The language of the statute is clear regarding the types of substances and
category of persons to whom it applies. Although the consequences of a conviction
are clear for an alien who attains a qualifying conviction for a controlled substance
(i.e., that person is "deportable"), as discussed below we find no reasonable




7
  Ginn factor one provides "if the facts alleged in the affidavit allege an error that
would not result in relief even if any factual dispute were resolved in appellant's
favor, the claim may be rejected on that basis." Ginn, 47 M.J. at 248. See also
Tippit, 65 M.J. at 77.
8
 The drugs distributed and possessed by appellant, as reflected on the charge sheet,
qualify as "controlled substances" per 21 U.S.C. §§ 802 and are not otherwise
excluded.



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VARGASPUENTES – ARMY 20091096

probability that appellant would have changed his plea had he been informed of the
potential deportation consequences of pleading guilty. 9

       In contrast to appellant's unsupported allegations, the record of trial reflects
that the evidence against appellant was compelling. Over an approximate three week
time span, appellant distributed and sold various controlled substances.
Specifically, on 26 January 2009, appellant sold five methadone pills to a Criminal
Investigation Command (CID) "source" for $60.00. On 3 February 2009, appellant
sold thirty methadone pills along with 0.11 grams of heroin for $380.00 to a CID
"source" and undercover CID Drug Suppression Team (DST) agent. On 4 February
2009, appellant sold .8 grams of heroin to an undercover DST agent for $360.00. On
17 February 2009, appellant was in the process of selling thirty-nine pills of
Oxycodone to an undercover DST agent when he was arrested by CID DST agents.
When government agents searched appellant's vehicle incident to his apprehension,
they found 0.3 grams of heroin in the vehicle. After being apprehended, appellant
signed a written waiver of rights (DA Form 3881), agreed to speak, and subsequently
rendered a written admission to some of the offenses (DA Form 2823). There are
approximately fifty photographs incidental to appellant's attempted distribution of
Oxycodone. For the charged offenses, appellant faced a potential sentence of a
dishonorable discharge, fifty years confinement, reduction to Private (E-1), total
forfeiture of pay, and a fine.

       Appellant asserts he told CPT KH of his citizenship concerns during a pretrial
session and on the day of his court-martial. Notwithstanding these claims, the
record of trial reflects that while under oath on the day of trial, the appellant advised
the military judge he had no questions about the meaning and effect of his guilty
plea and he fully understood the terms of his pretrial agreement and how they
affected his case. 10 Appellant also told the military judge he was satisfied with the



9
  In this regard, we note that for the purpose of prong one of Strickland, presuming
that CPT KH was aware of appellant's citizenship, her obligation under Padilla was
clear. Padilla, 130 S. Ct. at 1482. Counsel's obligation to investigate appellant's
citizenship status, however, is fact-intensive. See Strickland, 466 U.S. 690-91.
Because this opinion resolves the issue of ineffectiveness on prong two of
Strickland, however, we do not substantively discuss prong one of Strickland.
10
  The military judge engaged appellant in a colloquy regarding, in effect, whether
he was satisfied with and understood the terms of his pretrial agreement and was
satisfied with his trial defense counsel. A colloquy between appellant and the
military judge established the following:

                                                                         (continued . . .)



                                            8
VARGASPUENTES – ARMY 20091096

advice of his counsel. Appellant's acknowledgments under oath that he did not have
questions about his pretrial agreement, and his failure to raise to the military judge
his concerns he had regarding pleading guilty, are significant to providing temporal
information for this Court's analysis.

         We further note that 8 U.S.C. § 1227(a)(2)(B)(ii), provides "[a]ny alien who
is, or at any time after admission has been, a drug abuser or addict is deportable."
The record of trial reflects that appellant states he became involved in drug
distribution based on his own addiction to drugs and is also clear regarding
appellant's own drug use and addiction. Thus, based on appellant's acknowledgment
of drug abuse and addiction, appellant's risk of being "deportable" existed regardless
of a conviction for controlled substances. The totality of appellant's situation is
relevant when objectively considering the likelihood that he would not have pled
guilty but for the (presumed) error of his counsel.

       Based on the foregoing, we find that appellant has wholly failed to establish
the prejudice required under Strickland in guilty plea cases and find there is no
reasonable probability in this case that he would have changed his plea to the
charged offenses and insisted on going to trial. See e.g., Hill, 474 U.S. at 60.


(. . . continued)
      Appellant acknowledged he entered into the pretrial agreement of his own free
        will and that no one tried to force him to make the pretrial agreement.
      Appellant had no questions about his pretrial agreement.
      Appellant acknowledged he fully understood all the terms of his pretrial
        agreement and how they affected his case. (emphasis added).
      Appellant acknowledged he was pleading guilty because he was convinced he
        was in fact guilty and not just because he hoped to receive a lighter sentence.
      Appellant acknowledged that he had had enough time to discuss the case with
        his defense counsel.
      Appellant acknowledged he consulted fully with his defense counsel and
        received the full benefit of her advice.
      Appellant acknowledged that [CPT KH's] advice was in his best interest.
      Appellant acknowledged he was satisfied with [CPT KH] as his defense
        counsel.
      Appellant acknowledged he was pleading guilty voluntarily and of his own
        free will.
      Appellant had no questions about the meaning and effect of a plea of guilty.
      Appellant fully understood the meaning and effect of his plea of guilty.
      Appellant understood that even though he may be guilty, he had a legal and
        moral right to plead not guilty and place the burden on the government to
        prove his guilt beyond a reasonable doubt.



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VARGASPUENTES – ARMY 20091096

                                  CONCLUSION

      We have considered the matters appellant raised pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982) and find them to be without merit. The
findings of guilty and sentence are AFFIRMED.

      Senior Judge CONN and Judge HOFFMAN concur.

                                     FOR
                                      FORTHE
                                          THECOURT:
                                              COURT:




                                     MALCOLM H. SQUIRES, JR.
                                      MALCOLM H. SQUIRES, JR.
                                     Clerk of Court
                                      Clerk of Court




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