
USCA1 Opinion

	




          December 6, 1994      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-2303                                            JANNETTE ORTIZ-TORRES,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ___________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                 ___________________               Jannette Ortiz-Torres on brief pro se.               _____________________               Guillermo  Gil,  United  States  Attorney,  Jose  A. Quiles-               ______________                              ________________          Espinosa, Senior Litigation Counsel, and Ernesto Hernandez-Milan,          ________                                 _______________________          Assistant U.S. Attorney, on brief for appellee.                                  __________________                                  __________________                      Per Curiam.   Appellant challenges  the denial of a                      ___________            motion under 28 U.S.C.   2255, seeking relief from her guilty            plea and sentence.  Finding no error, we affirm.                      In   December,  1987,  appellant  was  arrested  by            customs  officials  along  with  three  travelling companions            aboard a cruise  ship docked  in Puerto  Rico.   Each of  the            four, who  had boarded  the ship  together in Venezuela,  was            found to be carrying  a quantity of cocaine.   The amount  of            cocaine  in appellant's sole  possession was  four kilograms.            The total cocaine found  among the packages and  suitcases of            all four  defendants was  approximately  39 kilograms  (gross            weight).                      Having reason  to believe that the  four defendants            were part of the same  illegal drug smuggling enterprise, the            government  obtained a  joint indictment  in which  they were            charged in three  counts with aiding and abetting one another            in  importing,  possessing,  and  possessing  with  intent to            distribute, 34.5 kilograms of  the drug.  Pursuant to  a plea            agreement, however, the  government dismissed the  indictment            against  appellant in exchange for  her guilty plea  to a one            count information  charging that she had  unlawfully imported            four kilograms of cocaine in violation of 21 U.S.C.   952(a).                      The crime to which  appellant pled guilty carries a            mandatory minimum penalty of  five years and a maximum  of 40                                         -2-            years  imprisonment.  See 21 U.S.C.   960(b)(2).  The charges                                  ___            that  were dropped  carried a  penalty of  ten years  to life            imprisonment.  See 21 U.S.C.    960(b)(1).                             ___                      Under the Sentencing  Guidelines, appellant's  base            offense level  is necessarily  determined by considering  all            conduct relevant to the offense of conviction.   See U.S.S.G.                                                             ___              1B1.3.   The  presentence report  ["PSR"] recited that  the            four  defendants (three women and a man) had boarded the ship            together and that the three women's passports bore sequential            numbers.     Based  on  information  from   the  other  women            participants, the  government believed  that the man  was the            head of the group, and appellant, who had shared a cabin with            him, was  the second  most  culpable.   Accordingly, the  PSR            recommended  a  guidelines  base  offense  level,  34,  which            corresponded with  the total  quantity of cocaine  carried by            all  four defendants.  See  U.S.S.G.   2D1.1.   Appellant was                                   ___            credited  with  a  two  level adjustment  for  acceptance  of            responsibility, and  she  was  assigned  a  criminal  history            category  of "I"  because, at  age twenty,  she had  no prior            criminal record.  This  yielded a guidelines range of  121 to            151  months imprisonment.  The court sentenced her at the low            end  of the  recommended range,  to 121  months imprisonment.            She did not appeal.                        In this motion, filed four years later, appellant's            basic concern  is that  her plea  bargain did  not lead  to a                                         -3-            lower  sentence.1     She  challenges  her   guilty  plea  as            involuntary and unintelligent, and alleges several  errors in            sentencing.                        As to  her guilty plea, appellant  alleges that her            counsel did not inform  her, or she did not  understand, that            the  sentencing court  could consider  the total  quantity of            cocaine  covered  in  the  dismissed counts.    As  appellant            perceives  it,  she  thus  netted no  benefit  from  her plea            bargain.                        To succeed on a  claim of ineffective assistance in            the context of the plea process, appellant must show both (1)            that her  counsel's representation  fell below the  objective            standard of reasonableness demanded  of attorneys in criminal            cases, and  (2) that  she suffered "prejudice,"  meaning that            there  is a  reasonable probability  that, but  for counsel's            errors,  she  would not  have  pled  guilty  but  would  have            insisted on going to trial.   See Panzardi-Alvarez v.  United                                          ___ ________________     ______            States,  879  F.2d  975  (1st  Cir.  1989)  (citing  Hill  v.            ______                                               ____            Lockhart, 474 U.S. 52, 57-59 (1985)),  cert. denied, 493 U.S.            ________                               ____________            1082 (1990).                                            ____________________            1.  Had  appellant's sentence  excluded consideration  of the            quantity of  drugs covered by the dismissed  counts, her base            offense  level   would  have  been   30.    Using   the  same            determinants, i.e.,  a two level reduction  for acceptance of            responsibility and  a criminal  history category of  "I," the            guidelines  range would have been 78 to 97 months.  Appellant            also  argues  that  she   should  have  received  a  downward            adjustment for "minimal participation."                                           -4-                      Appellant's proof on the first prong is inadequate.            She offers  only her  own conclusory assertion  that she  was            misinformed,  an  allegation that  finds  no  support in  the            available record.   The  plea  agreement she  signed made  no            promises, but left sentencing to "the sound discretion of the            Court in accordance with the Sentencing Guidelines."   In her            plea  petition she  expressed an  awareness of  the statutory            penalty range of from five  to forty years.  While we  do not            have the benefit  of a  plea hearing transcript,  due to  the            loss of the reporter's  notes, appellant does not  claim that            her alleged misunderstanding stemmed from  any misinformation            conveyed at the plea hearing.                        Even  if we  assumed, however,  that appellant  was            laboring  under   a   misapprehension  attributable   to   an            objectively unreasonable attorney  error, her allegations are            insufficient to  satisfy the "prejudice" prong  of the claim.            She admits that she  committed the offense to which  she pled            guilty,  and  offers  no  reason  to  believe  that  but  for            counsel's allegedly erroneous advice, she would have pled not            guilty and insisted on going to trial.  See Hill v. Lockhart,                                                    ___ ____    ________            474 U.S.  52, 59 (1985).   The fact, if fact it  is, that she            reaped no benefit at sentencing from her plea agreement, does            not  alone  suffice  to  establish  a  claim  of  ineffective                                         -5-            assistance.2   See United States v. Wright, 873 F.2d 437, 441                           ___ _____________    ______            (1st Cir. 1989).                        In  short, appellant's  belated allegations  do not            establish an  entitlement to  relief  from her  plea under               2255.  See  United States v. Laliberte,  25 F.3d 10,  13 (1st                   ___  _____________    _________            Cir.  1994)  (observing that    2255  relief  from a  plea is            available  after sentencing  only for  "a fundamental  defect            which  inherently  results  in  a   complete  miscarriage  of            justice,"  or "an omission  inconsistent with the rudimentary            demands of fair procedure").  Appellant's  challenge  to  the            computation of her  sentence has a dual premise.   Initially,            she appears to argue  that as a matter of  constitutional due            process, her sentence  should have been  based solely on  the            four  kilogram offense to which she pled guilty.  Second, she            argues that the court misapplied the sentencing guidelines by            attributing to her  as relevant conduct the combined total of            39  kilograms, when allegedly  she had no  knowledge that her            fellow  travellers  were  carrying  illegal  drugs;3  and  by                                            ____________________            2.  Appellant did reap a benefit from her plea for without it            she likely would not have received the two level reduction in            her sentence for acceptance of responsibility.             3.  Appellant's brief  cites the 1989 and  1992 amendments to            U.S.S.G.   1B1.3(a).  U.S.S.G. App. C, Amends. 78 & 439 (Nov.            1993).     The   amendments  are  "clarifying"   rather  than            "revisionary"  and  thus may  be  consulted  for purposes  of            interpreting  the  applicable  guideline  on  appeal,  United                                                                   ______            States v. LaCroix, 28 F.3d 223, 227, nn. 3-5 (1st Cir. 1994),            ______    _______            or on an otherwise cognizable   2255 motion, Isabel v. United                                                         ______    ______            States,  980 F.2d 60, 62 (1st Cir. 1992).  The amendments are            ______            not a substitute, however, for the required   2255 showing of                                         -6-            failing  to  adjust   her  sentence  downward  for   "minimal            participation" under U.S.S.G.   3B1.2.                      It is well settled  that there is no constitutional            impediment to  consideration by  the sentencing court  of all            conduct relevant  to the  offense in  question.   Wright, 873                                                              ______            F.2d at 437.   "In  the case of  jointly undertaken  criminal            activity (whether  or not  charged as a  conspiracy) relevant            conduct  includes  all  acts  reasonably foreseeable  by  the            defendant  and  committed  in  furtherance  of   the  jointly            undertaken activity."  United States v. Reyes, 3 F.3d 29 (1st                                   _____________    _____            Cir.  1993).  We have repeatedly upheld inclusion as relevant            conduct  of drug  transactions  that form  part  of the  same            course of  conduct as the count of  conviction, regardless of            whether  the transactions  were never  charged, or  initially            charged but  dropped.  Reyes, 3 F.3d  at 31; United States v.                                   _____                 _____________            Blanco, 888  F.2d 907,  908-11 (1st  Cir. 1989); Wright,  873            ______                                           ______            F.2d at 441.                      Our review of  the other sentencing  errors alleged            in  this    2255 motion  is necessarily  limited.   Knight v.                                                                ______                                            ____________________            "cause" for  appellant's earlier failure to  raise her claims            because   they  are   not  made   substantively  retroactive.            U.S.S.G.   1B1.10; cf.  McCleskey v. Zant, 499 U.S.  467, 487                               ___  _________    ____            (1991).     We  bypass   for  now,  as   unnecessary  to  our            disposition,  further consideration  of the relevance  of the            "accomplice  attribution"  amendments   to  which   appellant            points, noting  however that U.S.S.G.    1B1.3(a) also covers            acts "aided" and "abetted"  by the defendant, which  well may            be  the  "relevant  conduct"   included  here.    U.S.S.G.               1B1.3(a)(1)  (1988); see  also  U.S.S.G. App.  C. Amend.  439                                 _________            (Nov. 1993); LaCroix, 28 F.3d at 227.                          _______                                         -7-            United  States, __ F.3d __,  1994 U.S. App.  LEXIS 29659 (1st            ______________            Cir.  Oct. 20, 1994).   Barring  "exceptional circumstances,"            nonconstitutional, nonjurisdictional claims  that could  have            been, but were not raised at the appropriate time, may not be            asserted by collateral attack.  Knight, Id. at 7.                                              ______  ___                      Appellant  defaulted  on  her claims  twice.    She            failed  to assert  them at  the sentencing  hearing,  and she            failed to take a direct appeal.  Indeed, the available record            shows  that appellant interposed  no objections whatsoever to            the PSR, thus implicitly  acquiescing in the judge's reliance            upon  it at  sentencing.4   In the  absence of  a showing  of            "cause"  sufficient to  excuse these  defaults as  well as  a            showing of prejudice amounting  to a "complete miscarriage of            justice" or  "an omission  inconsistent with  the rudimentary            demands of fair procedure," she may not now assert them.  See                                                                      ___            id.at 6(quoting Hillv. UnitedStates, 368U.S. 424,428 (1962)).            ___             ____   ____________                      Appellant  attempts to  excuse  the defaults  by  a            combination   claim   of   attorney  ineffectiveness   during            sentencing and an alleged denial of an opportunity to address            the  court or challenge the  PSR.  A  constitutional claim of            ineffective assistance of counsel is not normally barred by a                                            ____________________            4.  Because appellant  offered  no  objection  to  the  facts            recited  in the PSR, she also waived the other alleged errors            she  asserts:  that  there   was  insufficient  evidence   at            sentencing to support  the "relevant conduct"  determination,            and that the judge failed to enter specific findings on facts            she  now perceives as  "controverted."  See  United States v.                                                    ___  _____________            Benjamin, 30 F.3d 196, 197 (1st Cir. 1994).             ________                                         -8-            failure  to raise it on direct review.   Id. at 10.  However,                                                     ___            this claim was  not squarely presented nor ruled  upon below,            so we will not address it for the first time on appeal.                        We   also   note  that   appellant   makes  certain            allegations with respect to  the sentencing hearing,  without            specifically mentioning the requirements  of Fed. R. Crim. P.            32  or our recent decision in United States v. De Alba-Pagan,                                          _____________    _____________            No. 93-2018 (1st  Cir. Aug.  26, 1994).   The Rule 32  issue,            like the  related issue of ineffectiveness  of counsel during            sentencing, was not squarely  presented nor ruled upon below.            Moreover,  the  record on  appeal  does  not  contain a  full            transcript of the sentencing hearing.   For these reasons, we            will not address this issue for the first time on appeal.                      Affirmed.                      ________                                         -9-
