            United States Court of Appeals
                       For the First Circuit

No. 14-1030

                       WAYNE VARGAS-DE JESÚS,

                       Petitioner, Appellant,

                                 v.

                           UNITED STATES,

                        Respondent, Appellee.


            APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF PUERTO RICO

          [Hon. Aida M. Delgado-Colón, U.S. District Judge]


                               Before

                  Barron and Stahl, Circuit Judges,
                    and Sorokin,* District Judge.


     Derege B. Demissie, with whom Demissie & Church was on brief,
for appellant.
     Susan Z. Jorgensen, Assistant United States Attorney, with
whom Mainon A. Schwartz, Assistant United States Attorney, Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-
Sosa, Assistant United States Attorney, Chief, Appellate Division,
were on brief, for appellee.


                          February 10, 2016




     *   Of the District of Massachusetts, sitting by designation.
          BARRON, Circuit Judge.     Wayne Vargas-De Jesús appeals

the District Court's denial of his 28 U.S.C. § 2255 petition for

post-conviction relief.   Vargas contends that his petition should

have been granted because his trial counsel provided ineffective

assistance at sentencing in violation of the Sixth Amendment.   We

affirm.

                                I.

          Because we are considering a § 2255 petition, we recount

the proceedings not only through conviction and sentencing, but

also through Vargas's direct appeal.      That way, we will have

provided all of the background that is relevant to the issues that

are now before us on post-conviction review.

          We start with what happened at trial.    In 2008, a jury

found Vargas guilty of two counts of possession with intent to

distribute a controlled substance within one thousand feet of a

school, in violation of 21 U.S.C. §§ 841(a)(1) and 860, and one

count of conspiracy to do the same, see 21 U.S.C. § 846.1

          In rendering the verdict, the jury set forth findings

about the drug quantity involved in each offense in a special


     1    We note that although the presentence report ("PSR") and
the parties' briefs state that Vargas was convicted of conspiracy
to possess with intent to distribute a controlled substance within
one thousand feet of a school, the jury found Vargas guilty of
Count 1 of the indictment, which charged Vargas with "[c]onspiracy
to possess with intent to distribute and to distribute controlled
substances" within one thousand feet of a school. This apparent
discrepancy has no bearing on our decision.


                                 - 2 -
verdict form.      The jury found that one of the two substantive

possession counts involved 50 grams or more of cocaine base and

that the other involved 5 kilograms or more of cocaine.        The jury

also found that the conspiracy count involved at least 50 grams of

cocaine base.

           The probation officer then prepared the presentence

report ("PSR").    Apparently relying on the jury's findings in the

special verdict form, the PSR recommended a base offense level of

32 under the United States Sentencing Guidelines based on drug

quantities of 5 kilograms of cocaine and 50 grams of cocaine base.

After applying various enhancements, and using a criminal history

category of I, the PSR calculated a guideline sentencing range of

210 to 262 months' imprisonment.

           Defense counsel did not object at the sentencing hearing

to the PSR's drug quantity determination.           The District Court

adopted   that    determination,   as   well   as    the   PSR's   other

recommendations.     The District Court then imposed a sentence of

210 months' imprisonment on each of Vargas's three counts, with

those sentences to be served concurrently.

           Vargas appealed.   He argued that the District Court did

not have jurisdiction over the two substantive possession counts

due to the Federal Juvenile Delinquency Act (FJDA), 18 U.S.C. §

5032.   We agreed because the only evidence supporting those counts

concerned conduct Vargas engaged in before he had reached the age


                                   - 3 -
of eighteen -- the age of majority -- and because the government

had not certified that the case satisfied one of the enumerated

conditions in the FJDA that would permit federal court jurisdiction

over juvenile conduct.      See United States v. Vargas-De Jesús, 618

F.3d 59, 61-65 (1st Cir. 2010).

           At the same time, we rejected Vargas's argument that,

under the FJDA, the District Court also lacked jurisdiction over

the conspiracy count.      Id. at 65.    We reasoned that the government

had supported the conspiracy count with evidence of conduct that

Vargas engaged in not only before but also after he had turned

eighteen. Id. at 65-66. And, citing our decision in United States

v. Welch, 15 F.3d 1202 (1st Cir. 1993), we held that a jury may

consider   evidence   of    a   defendant's     pre-majority   conduct    to

establish the existence of a conspiracy so long as the defendant

had "in some manner ratified his participation in the conspiracy

after attaining majority."         Vargas-De Jesús, 618 F.3d at 65

(alterations and internal quotation marks omitted).

           On remand, the District Court did not resentence Vargas.

Instead, the District Court entered an amended judgment reflecting

that Vargas had been convicted of only the conspiracy count.             The

District Court then imposed the same sentence that it had selected

at Vargas's pre-appeal sentencing -- 210 months' imprisonment.2


     2    The District Court did so even though Vargas's initial
sentence was based on a mandatory minimum sentence and a guidelines


                                        - 4 -
          Following the District Court's entry of the amended

judgment, Vargas, proceeding pro se, filed a petition to vacate or

modify his sentence under 28 U.S.C. § 2255.            The District Court

referred Vargas's petition to a magistrate judge, who recommended

denying   the    petition.       The    District     Court    adopted   that

recommendation and thus denied the petition.

          Both    the    Magistrate    Judge   and   the     District   Court

construed the petition to argue only that the defense counsel had

provided ineffective assistance during Vargas's trial.              Neither

read the petition to contend that the defense counsel had also

provided ineffective assistance at sentencing.

          Following the District Court's denial of the petition,

Vargas sought a certificate of appealability ("COA"). The District

Court denied the request.       Vargas -- still proceeding pro se --

requested a COA from this Court.

          In considering Vargas's request, we interpreted Vargas's

petition to argue that his counsel was ineffective both at trial

and at sentencing.      We issued a COA only as to the latter question,

upon which the District Court had not ruled.               Specifically, we

granted Vargas a COA on the issue:



sentencing range calculated on the understanding that Vargas was
responsible for 5 kilograms of cocaine -- an amount that the jury
had found with respect to the substantive count, but not with
respect to the conspiracy count. But Vargas does not raise any
issue to us regarding the District Court's decision not to
resentence him, and therefore we do not consider any such issue.


                                       - 5 -
            whether     counsel    was     constitutionally
            ineffective for failing to challenge the drug
            quantity    attributed   to     petitioner   at
            sentencing,     given     that     petitioner's
            participation in the charged conspiracy
            occurred largely while he was underage, and
            that the evidence of narcotics transactions
            presented at trial was limited to transactions
            occurring before petitioner reached the age of
            majority.

We also granted Vargas's request for appointment of counsel.

                                       II.

            Where, as here, the District Court did not address the

ineffective assistance of counsel claim that we certified for

appeal, "an appellate court usually is ill-equipped to handle the

fact-specific inquiry that such claims often require."                   United

States     v.   Ofray-Campos,    534    F.3d    1,    34   (1st   Cir.   2008).

Nevertheless, here we may address such a claim because "the

critical facts are not in dispute and the record is sufficiently

developed to allow reasoned consideration of the claim."                 United

States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993).3

            In pressing his ineffective assistance claim, Vargas

contends    that   the   "only   evidence      of    actual   drug   quantities


     3    Of course, by virtue of the posture in which this case
comes to us, the District Court did not hold an evidentiary hearing
on the issue that we certified for appeal. But Vargas makes no
argument that an evidentiary hearing is necessary to resolve that
issue, and thus any such argument is waived. See Moreno-Morales
v. United States, 334 F.3d 140, 145 (1st Cir. 2003) (stating that
evidentiary hearings on § 2255 petitions "are the exception, not
the norm, and there is a heavy burden on the petitioner to
demonstrate that an evidentiary hearing is warranted").


                                        - 6 -
introduced during [his] trial involved drug transactions that took

place prior to him reaching the age of majority," and that defense

counsel should have objected to the use of that pre-majority

evidence to calculate Vargas's sentence.         Vargas argues that, had

counsel so objected, the objection would have been successful and

would   have   resulted   in    a   lower   sentence.      He     thus   claims

ineffective assistance of counsel at sentencing.                See Strickland

v. Washington, 466 U.S. 668, 687-88 (1984) (holding that, to

succeed on an ineffective assistance of counsel claim, a petitioner

must show both deficient performance and prejudice); see also

Lafler v. Cooper, 132 S. Ct. 1376, 1385-86 (2012) (stating that

Strickland applies in the sentencing context, as "there exists a

right to counsel during sentencing").

           An attorney's performance is deficient under Strickland,

however, "only where, given the facts known at the time, counsel's

choice was so patently unreasonable that no competent attorney

would have made it."      Knight v. Spencer, 447 F.3d 6, 15 (1st Cir.

2006) (internal quotation marks omitted).          To prevail on a claim

of deficient performance, moreover, a defendant must "overcome the

strong presumption" that the action he challenges might be sound

strategy on the part of his attorney.          See Horton v. Allen, 370

F.3d 75, 81 (1st Cir. 2004) (internal quotation marks omitted).

We conclude that Vargas has not overcome that strong presumption

because   an   objectively     reasonable   counsel     could    have    made   a


                                       - 7 -
strategic choice not to object to the use of Vargas's pre-majority

conduct in fashioning Vargas's sentence.                   See Wilder v. United

States, 806 F.3d 653, 660 (1st Cir. 2015) (judging whether counsel

was    ineffective    by     asking    whether      "[o]bjectively    reasonable

counsel could have made a strategic choice" to do as actual counsel

did).

            There was, at the time of sentencing, substantial out-

of-circuit precedent uniformly rejecting the argument that pre-

majority conduct could not be considered for purposes of sentencing

in a case like Vargas's.            See United States v. Gibbs, 182 F.3d

408, 442 (6th Cir. 1999) (holding that the district court could

"take into account quantities of crack cocaine [the defendant]

sold before he reached age eighteen as relevant conduct to [the

defendant's] . . . drug trafficking convictions"); United States

v.    Thomas,   114   F.3d   228,     267   (D.C.   Cir.    1997)   ("Since   [the

defendant] was properly convicted in adult court of a conspiracy

he joined as a juvenile but continued in after eighteen, the

Guidelines unambiguously permit the court to consider his and his

co-conspirators' foreseeable conduct that occurred during the

commission of the [entire conspiracy] offense." (alteration in

original) (internal quotation marks omitted)); United States v.

Sparks, 309 F. App'x 713, 717 (4th Cir. 2009) (unpublished) ("[I]n

sentencing an adult defendant for conspiracy, a district court may

consider all relevant conduct, including conduct which occurred


                                            - 8 -
when the defendant was a juvenile participant in the conspiracy.

Accordingly, we find [the defendant's] argument that the district

court erred in considering the drug quantities attributable to him

as a juvenile to be without merit.").4                In addition, our own

precedent addressing the issue was at best equivocal.                See United

States v. Rodríguez, 731 F.3d 20, 30 (1st Cir. 2013) (describing

Welch, 15 F.3d 1202, as reviewing a "drug-quantity calculation

that included the defendant's pre- and post-majority conduct,"

"vacat[ing] the sentence not because it included pre-majority

conduct,    but    [on    other    grounds],"        and     therefore,    "[b]y

implication, [holding that] inclusion of the defendant's pre-

majority conduct was permissible," but nonetheless declining to

decide the issue).

            But   the    problem   for   Vargas's     claim     of   ineffective

assistance is not just that the precedent was hardly favorable.

As the government points out, by pressing such an objection,

defense counsel could have risked opening the door to the District

Court's reevaluation of the PSR's drug quantity calculation.               Such

a reevaluation -- even if it succeeded in excluding pre-majority

conduct    --   might    have   resulted    in   a    higher     drug   quantity

calculation than that contained in the PSR.                See United States v.




     4    No court has held to the contrary since.    In fact,
another circuit has joined the consensus. See United States v.
Flores, 572 F.3d 1254, 1269-70 (11th Cir. 2009).


                                         - 9 -
Flores-De-Jesús, 569 F.3d 8, 37 (1st Cir. 2009) ("In determining

drug quantity for purposes of calculating a defendant's base

offense level under the Guidelines, the sentencing court may

attribute to the defendant all reasonably foreseeable quantities

of contraband that were within the scope of the criminal activity

that he jointly undertook." (internal quotation marks omitted)).

           The record shows that the government indicated at the

sentencing hearing that it was prepared to make an argument that

the drug quantity that the PSR attributed to Vargas was a low

estimate of the amount of drugs for which Vargas was responsible.

In so arguing, the government stated that "the narcotics that were

distributed at this drug point clearly exceeded [the amounts used

to calculate the base offense level]," and that "by the testimony

of both Ricardo Madera and the government forensic chemist from

the Puerto Rico Forensic Science Institute, it could be easily

determined that the amount of cocaine base or cocaine were higher

than the amounts taken into consideration in the presentence

report."

           In addition, Vargas at no point challenged the PSR's

description   of   Vargas   as   being   a   member   of   a   large   drug

distribution scheme5 that operated for three years, including for


     5    Two incidents discussed at trial -- although both
occurring before Vargas reached the age of eighteen -- give a sense
of the substantial scale of the conspiracy.         A confidential
informant testified at trial that, on one occasion, he called


                                    - 10 -
at least nine months after Vargas had attained the age of majority.

More specifically, the PSR described that distribution scheme as

one that purchased drugs in wholesale quantities and sold them at

a drug distribution point which operated seven days a week, for

twelve hours a day.     The PSR went on to describe Vargas as the

"owner" of the scheme's cocaine at a drug point and as a "manager"

of the conspiracy.    Vargas did challenge the PSR's description of

him as an "owner" and "manager."        But the District Court overruled

that objection on the ground that there was plenty of contrary

evidence presented at trial.

            In sum, Vargas has not shown that his counsel's failure

to challenge the quantity determination in the PSR resulted from

an unreasonably deficient judgment.         Rather, the record supports

the conclusion that counsel's decision not to make that challenge

reflected a quite reasonable calculation of risk versus reward.

See United States v. Natanel, 938 F.2d 302, 310 (1st Cir. 1991)

(holding that counsel's decision not to make a closing argument on

one charged count, "while admittedly a gamble," was a "reasonable

strategic   choice"   and   therefore    did   not   constitute   deficient

performance even if "in retrospect, [it was] unsuccessful or even




Vargas to purchase two packages of cocaine base for $500, and that,
on a second occasion, he discussed buying 10 kilograms of cocaine
from Vargas. Vargas-De Jesús, 618 F.3d at 65.


                                   - 11 -
unwise").    For that reason, we reject Vargas's request for post-

conviction relief on the sole claim we certified for appeal.6

                                III.

            For the foregoing reasons, the District Court's denial

of Vargas's § 2255 petition is affirmed.




     6    Vargas also argues that his counsel was ineffective at
sentencing because he "failed to argue that [Vargas] should receive
a downward departure based on his youth at the time of the
individual acts." But we do not address this argument. It is
outside the scope of the COA, and Vargas did not attempt -- below
or on appeal -- to obtain a COA on this issue. See Peralta v.
United States, 597 F.3d 74, 83 (1st Cir. 2010) (per curiam)
(holding that, because the petitioner "failed to request a COA as
to [certain] issues in either the district court or the court of
appeals, [the defendant] ha[d] waived his right to appellate review
of those issues").


                                 - 12 -
