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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br>No. 97-1670 <br> <br>                          UNITED STATES, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                     REYNALDO JEREMIAS ORTIZ, <br> <br>                      Defendant - Appellant. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>          [Hon. Jos Antonio Fust, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>                 Campbell, Senior Circuit Judge, <br> <br>                    and Stahl, Circuit Judge. <br> <br>                      _____________________ <br> <br>    Rafael F. Castro-Lang, by appointment of the Court, for <br>appellant. <br>    Antonio R. Bazn, Assistant United States Attorney, with whom <br>Guillermo Gil, United States Attorney, was on brief for appellee. <br> <br> <br> <br>                       ____________________ <br> <br>                         June 12, 1998 <br>                       ____________________

            TORRUELLA, Chief Judge.  Defendant Reynaldo Jeremas <br>Ortiz ("Ortiz") appeals his four-count conviction for the illegal <br>possession of narcotics and a firearm which were seized from his <br>residence in Guayama, Puerto Rico while police executed a warrant <br>for his arrest.  Ortiz was sentenced to 240 months of imprisonment <br>and 10 years of probation for the first two counts and 60 months of <br>concurrent imprisonment and 3 years of concurrent probation for the <br>remaining counts. <br>          Ortiz claims that the district court committed two <br>errors.  First, he argues that his lawyer provided ineffective <br>counsel by failing to move to suppress the narcotics and firearm <br>evidence.  Second, he asserts that he cannot be convicted of <br>possession with intent to distribute drugs within 1,000 feet of a <br>school simply because he possessed such substances in his residence <br>within such a distance from a public middle school.  We conclude <br>that neither point is well taken and thus affirm his conviction. <br>                          I.  BACKGROUND     On appeal, we view the evidence in the light most <br>favorable to the jury's verdict.  See United States v. Rosen, 130 <br>F.3d 5, 6 (1st Cir. 1997).  We conclude that the jury could have <br>found the following facts. <br>          On June 20, 1996, a Puerto Rico judge found probable <br>cause to believe that Ortiz had engaged in a conspiracy to commit <br>murder and issued a warrant for his arrest.  On that same date, <br>agents of the Puerto Rico Department of Justice executed the arrest <br>warrant at Ortiz' parents' residence in Guayama, Puerto Rico, which <br>was located approximately 150 feet from the Genaro Cautio Public <br>Middle School.  Ortiz lived in a small house, approximately 10 feet <br>wide by 10 feet long, behind the main residence.  The agents <br>knocked on his door and identified themselves as police.  When the <br>defendant opened the door, the arrest team physically restrained <br>the suspect on his bed and handcuffed him. <br>          Next to the bed, agents found a small plastic bag <br>containing vials of what was later discovered to be cocaine base, <br>commonly known as crack cocaine.  One of the agents searched a <br>dresser, which was to the left hand-side of the bed, and found a <br>pistol and a bag of cocaine in the first drawer.  The gun was a <br>nickel-plated Smith and Wesson pistol with 15 rounds of ammunition <br>in the magazine and a bullet in the chamber.  Its serial numbers <br>had been removed.  The agent also searched a plastic shopping bag <br>on top of the dresser, and discovered additional vials of crack <br>cocaine. <br>          The weapon and narcotics evidence was the basis of a <br>four-count federal indictment against Ortiz.  Counts One and Two <br>charged Ortiz with possession with intent to distribute varying <br>amounts of narcotics within 1,000 feet of a public school in <br>violation of 21 U.S.C.  841(a) and 860(a).  Counts Three and <br>Four, respectively, charged appellant with the felonious possession <br>of a firearm in violation of 18 U.S.C.  922(g), and possession of <br>a firearm with an obliterated serial number in violation of 18 <br>U.S.C.  922(k).  He was tried and convicted on all counts.  Ortiz <br>appeals. <br> <br>                         II.  DISCUSSION     A.  Ineffective Assistance of Counsel <br>          Ortiz alleges he received ineffective assistance of <br>counsel because his trial lawyer failed to file a motion to <br>suppress the weapon and narcotics evidence despite the defendant's <br>specific request that the attorney do so.  We do not ordinarily <br>consider ineffective assistance of counsel claims on direct appeal.  <br>See United States v. Martnez-Martnez, 69 F.3d 1215, 1225 (1st <br>Cir. 1995).  However, "where the critical facts are not genuinely <br>in dispute and the record is sufficiently developed to allow <br>reasoned consideration of an ineffective assistance claim, an <br>appellate court may dispense with the usual praxis and determine <br>the merits of such a contention on direct appeal."  United Statesv. Natanel, 938 F.2d 302, 309 (1st Cir. 1991). <br>          Ortiz' case falls within this exception.  The record <br>reflects that the appellant, on several occasions, requested that <br>the district court dismiss his counsel and appoint another attorney <br>to represent him due to the defense attorney's failure to file a <br>motion to suppress the narcotics and firearm evidence.  In two <br>instances, Ortiz directly addressed the district court regarding <br>this issue.  On February 3, 1997, the date of the jury trial, he <br>stated to the court, "I want to be assigned another attorney to <br>represent me. . . .  I have asked for [my lawyer] to file some <br>motions that he has refused to file. . . ."  On April 30, 1997, the <br>date set for sentencing, Ortiz again complained of his attorney's <br>failure to pursue what the appellant viewed as his only defense. <br>          Our review of the record shows that, on both occasions, <br>the district court refused to dismiss defense counsel because his <br>attorney had determined that "a motion to suppress would be <br>frivolous, under the present state of the law."  Relying <br>substantially on Chimel v. California, 395 U.S. 752 (1969), defense <br>counsel determined that the agents had conducted a valid search of <br>Ortiz' premises incident to a lawful arrest.  Thus, appellant's <br>attorney made a conscious decision not to file the motion based on <br>his legal research.  Neither party suggests that we need to engage <br>in further factfinding.  Cf. Natanel, 938 F.2d at 309 (reaching <br>ineffective assistance claim where counsel's alleged omission was <br>straightforward and additional factfinding was not required).  <br>Under these circumstances, we find that the record is sufficiently <br>developed to entertain Ortiz' ineffective assistance claim. <br>          The Sixth Amendment right to counsel includes the right <br>to the effective assistance of counsel.  See Strickland v. <br>Washington, 466 U.S. 668, 686-87 (1984).  To prevail on his claim, <br>Ortiz must show that his attorney's performance not only was <br>deficient, but also prejudiced his defense.  See id. at 687.  We <br>hold that appellant's counsel's conduct was within the "wide range <br>of reasonable professional assistance."  Id. at 689.  In applying <br>the performance standard, "we examine what counsel 'knew, or should <br>have known, at the time his tactical choices were made and <br>implemented.'"  United States v. Georgacarakos, 988 F.2d 1289, 1298 <br>(1st Cir. 1993) (citing Natanel, 938 F.2d at 309).  Our analysis, <br>then, turns on whether, in his decision to forego filing the <br>suppression motion, defense counsel's reliance on Chimel v. <br>California, 395 U.S. 752 (1969), was so misplaced as to constitute <br>deficient performance. <br>          In Chimel, three California police officers executed an <br>arrest warrant for a burglary suspect, Ted Steven Chimel, at the <br>suspect's home.  Over Chimel's objections, the officers searched  <br>his entire three-bedroom house, and seized numerous items, which <br>were later admitted into evidence against the defendant.  The <br>entire search took approximately 45 minutes to an hour to complete.  <br>The Supreme Court reversed Chimel's conviction, holding that the <br>search of the defendant's entire house unreasonably extended beyond <br>the defendant's person and area from which he might have obtained <br>either a weapon or destroyed evidentiary items.  See id. at 762-63. <br>The Chimel court noted, however, that "[t]here is ample <br>justification [] for a search of the arrestee's person and the area <br>'within his immediate control'--construing the phrase to mean the <br>area from which he might gain possession of a weapon or <br>destructible evidence."  Id. at 763. <br>          In the instant case, Ortiz was detained within the <br>confines of a room, which was no larger than 10-feet wide by 10- <br>feet long.  In such a small space, items on top of and inside <br>Ortiz' chest of drawers as well as next to his bed were all within <br>the suspect's grab area.  Moreover, it is important to note that <br>the agents were executing an arrest warrant for a violent crime, <br>conspiracy to murder.  In our view, it was reasonable for the <br>agents to conduct a protective sweep of the room, and Chimelappears to support that conclusion.  Thus, appellant's counsel had <br>a legitimate basis, in light of Chimel, for not filing the <br>suppression motion. <br>          We are, of course, addressing an ineffective-assistance- <br>of-counsel claim rather than deciding whether, as a matter of law, <br>Puerto Rico police conducted a valid search incident to a lawful <br>arrest.  Our scrutiny of counsel's performance must be "highly <br>deferential."  Strickland, 466 U.S. at 689.  We find that counsel's <br>conduct was well within the acceptable range of reasonable <br>professional assistance.  The defense attorney decided against <br>filing a motion he reasonably believed would be of no benefit to <br>his client.  Accordingly, we rule that Ortiz' ineffective <br>assistance claim is without merit. <br>          B.   Schoolyard Statute <br>          Ortiz argues that the trial evidence failed to support <br>his conviction under 21 U.S.C.  841(a)(1) and 860(a) for <br>possession of a controlled substance with intent to distribute <br>within 1,000 feet of a public school.  Section 860(a), commonly <br>known as the schoolyard provision of the federal drug laws, <br>provides enhanced penalties for: <br>            Any person who violates section 841(a)(1) <br>            or section 856 . . . by distributing, <br>            possessing with intent to distribute, or <br>            manufacturing a controlled substance in or <br>            on, or within one thousand feet of, the <br>            real property comprising a public or <br>            private elementary, vocational, or <br>            secondary school. . . . <br> <br>21 U.S.C.  860(a).  According to Ortiz, the statute requires proof <br>that the defendant intended to distribute or that he actually <br>distributed narcotics within 1,000 feet of the middle school <br>located near his parents' residence.  Since the government <br>presented no evidence that Ortiz had such an intent, appellant <br>asserts that we must reverse his conviction on the first two <br>counts.  We engage in de novo review of questions of law.  United <br>States v. Fernndez, 121 F.3d 777, 778 (1st Cir. 1997). <br>          While this court has yet to address the issue presented <br>here, three other courts of appeals have held that the enhanced <br>penalty under  860(a) applies to a defendant who with intent to <br>distribute possesses narcotics in a school zone even if he or she <br>intends to distribute the drugs there or elsewhere.  See United <br>States v. McDonald, 991 F.2d 866, 868-70 (D.C. Cir. 1993); United <br>States v. Rodrguez, 961 F.2d 1089, 1092-95 (3d Cir. 1992); United <br>States v. Wake, 948 F.2d 1422, 1431-33 (5th Cir. 1991).  We agree <br>with our sister circuits. <br>          The language of  860(a) supports the conclusion that the <br>statute punishes drug possession with intent to distribute near a <br>school, whether or not the intended target for distribution is <br>within the area surrounding the school.  As both the Third and <br>District of Columbia Circuits have noted, "[the] provision applies <br>to three types of criminal conduct: distributing drugs, possessing <br>drugs with the intent to distribute, and manufacturing drugs."  <br>Rodrguez, 961 F.2d at 1092; see also McDonald, 991 F.2d at 869.  <br>Clearly,  860(a) requires the actus reus for each offense, i.e., <br>distributing drugs, possessing drugs with the intent to distribute, <br>and manufacturing drugs, to occur within 1,000 feet of a school.  <br>Since the actus reus for possession with intent to distribute is <br>possession, "it follows that possession of the drugs, not the <br>intended location for distribution, must be located within 1,000 <br>feet of a school."  See 961 F.2d at 1092. <br>          Ortiz cites decisions in several district court cases to <br>support his contention that the provision reaches only those who <br>intend to distribute narcotics within a school zone.  See United <br>States v. Testa, 768 F. Supp. 221, 222-23 (N.D. Ill. 1991); United <br>States v. Coates, 739 F. Supp. 146, 152-53 (S.D.N.Y. 1990); United <br>States v. Liranzo, 729 F. Supp. 1012, 1013-14 (S.D.N.Y. 1990).  The <br>Liranzo court argues that rules of grammar require that "within one <br>thousand feet" modify "with intent to distribute" rather than <br>"possessing."  See 729 F. Supp. at 1014.  According to the court, <br>if Congress had intended a different meaning,  860(a) would have <br>read:  "'possessing, within one thousand feet of a school, with <br>intent to distribute a controlled substance . . . .'" Id.  However, <br>as the Third Circuit aptly observes, the geographic element <br>modifies "distributing" and "manufacturing" as well as "possessing <br>with intent to distribute."  See 961 F.2d at 1093.  Thus, if <br>Congress had drafted the provision as the Liranzo court suggests, <br>it would have had to repeat the "within one thousand feet" language <br>two more times after "distributing" and "manufacturing."  See id.  <br>"Economical legislative drafting dictates that such awkward <br>repetition be avoided if at all possible."  Id.  Therefore, we <br>disagree with the Liranzo court's interpretation. <br>          The facts of the three district court cases cited by <br>Ortiz strongly suggest that the defendants in those cases did not <br>intend to distribute drugs within a school zone and that the <br>existence of drugs within the zone was the product only of unlucky <br>circumstances.  See Testa, 768 F. Supp. at  222-23 (drugs merely <br>stored in stash house near public high school); Coates, 739 F. <br>Supp. at 153 (possession of cocaine on board a train at train <br>station located close to technical school); Liranzo, 729 F. Supp. <br>at 1013 (drug possession at bus terminal located within 1,000 feet <br>of private elementary school).  Accordingly, these courts argue <br>that, if  860(a) were read to require only that the place of <br>possession be within a school zone, regardless of the place of <br>intended distribution, the statute would unfairly sweep into its <br>ambit cases involving no increased risk to students. <br>          However, "[n]o matter how interpreted, the coverage of <br>the schoolyard provision would not correspond precisely with the <br>class of cases involving increased risk to students."  Rodrguez, <br>961 F.2d at 1094.  If we require proof of intent to distribute only <br>within the school zone, as these district courts did, the statute <br>would exclude many cases where the presence of drugs, in fact, <br>increased the risk of harm to students.  In view of the danger that <br>the mere presence of drugs near a school presents, the district <br>courts' interpretation would provide an escape-hatch for a <br>defendant when, as here, the government is unable to establish <br>precisely where the drugs were meant to be distributed, thereby <br>defeating the intent of Congress.  In many such cases, school zone <br>distribution may even be intended but proving this may be <br>difficult.  Certainly, the mere existence of a large quantity of <br>drugs in an area increases the possibility of gang warfare and <br>gunfire and other drug-related violence in that vicinity.  See id. <br>Moreover, the interpretation espoused by these district court cases <br>is vulnerable to other imprecisions as well.  We can well imagine <br>a situation where a defendant intends to distribute drugs within a <br>school zone, but at that time, school is no longer in session.  See991 F.2d at 870.  In such a circumstance, the district courts' <br>interpretation would also sweep into its net defendants who did not <br>pose any threat to students.  As the Court of Appeals for the <br>District of Columbia notes: <br>            Legislatures undoubtedly estimate the <br>            malignity of an offense, not merely by <br>            assessing the harm produced by a single <br>            act, but by considering the general alarm <br>            and anxiety offenses of this sort can be <br>            expected to cause. . . . [P]articular <br>            instances in which no greater fear or <br>            insecurity could arise from the crime's <br>            proximity to a school thus fail to take <br>            into account the generalities on which <br>             860 quite properly rests. <br> <br>Id.  Consequently, we find the district court rulings discussed <br>above to be unpersuasive. <br>          Ortiz also contends that the rule of lenity mandates that <br>we adopt his interpretation of the provision.  While Ortiz' <br>interpretation of  860(a) is arguably plausible, "it is not cogent <br>for the reasons we have given.  Whatever uncertainty of meaning <br>exists, it is far from 'grievous,' an essential condition for <br>applying the canon."  McDonald, 991 F.2d at 870-71 (citing Chapmanv. United States, 500 U.S. 453 (1991)).  Finally, the appellant <br>claims that, in his case, where the possession of narcotics near a <br>schoolyard was purely coincidental, the enhancement under the <br>provision violates the Eighth Amendment prohibition against <br>penalties that are grossly disproportionate to the crime.  We see <br>no merit to this claim.  "[T]he determination of sentences is <br>primarily a legislative prerogative."  United States v. Gonzles, <br>121 F.3d 928, 942 (5th Cir. 1997).  Thus, successful challenges to <br>the proportionality of punishments are "exceedingly rare."  <br>Harmelin v. Michigan, 501 U.S. 957, 1001 (1991).  Here, Ortiz' <br>punishment under  860(a) was not so grossly disproportionate as to <br>violate the Eighth Amendment. <br>                        III.  CONCLUSION <br>          For the foregoing reasons, we affirm Ortiz' conviction on <br>all counts. <br></pre>

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