         08-6204-cr
         United States v. Noble

                                 UNITED STATES COURT OF APPEALS
                                       F OR T HE S ECOND C IRCUIT

                                               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 Daniel Patrick Moynihan
         United States Courthouse, 500 Pearl Street, in the City of
         New York, on the 2 nd day of February, two thousand and ten.

         Present: RICHARD C. WESLEY,
                  GERARD E. LYNCH,
                                Circuit Judges,
                  MARK R. KRAVITZ,
                                District Judge. *
         ________________________________________________

         UNITED STATES OF AMERICA,
                            Appellee,

                        - v. -                                              (08-6204-cr)

         BRYAN NOBLE,
                            Defendant-Appellant. **
         __________________________________________________



         Appearing for Appellant:                     SAMUEL M. BRAVERMAN, Law Office
                                                      of Samuel M. Braverman, Bronx,


               *
                  The Honorable Mark R. Kravitz, of the United States District Court
         for the District of Connecticut, sitting by designation.
                **
                 The Clerk of the Court is directed to amend the official caption as
         set forth above.

                                                         1
                                  New York.

     Appearing for Appellee:      RICHARD C. TARLOWE and IRIS LAN,
                                  Assistant United States
                                  Attorneys, for Preet Bharara,
                                  United States Attorney for the
                                  Southern District of New York,
                                  New York, New York.


          Appeal from the United States District Court for the
     Southern District of New York (Sullivan, J.).

 1       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

 2   AND DECREED that the judgment of the United States District

 3   Court for the Southern District of New York be AFFIRMED,

 4   except that Appellant’s claim that his former counsel

 5   rendered ineffective assistance by failing to request a

 6   hearing to establish facts relevant to an applicable

 7   sentencing enhancement is DISMISSED WITHOUT PREJUDICE.

 8       Defendant-Appellant Bryan Noble appeals from a judgment

 9   of conviction entered on December 10, 2008 in the United

10   States District Court for the Southern District of New York.

11   The judgment was entered following a guilty plea before

12   Judge Richard J. Sullivan.   Noble was indicted on April 11,

13   2007 with one count of possession of a firearm after having

14   previously been convicted of a felony in violation of 18

15   U.S.C. § 922(g)(1).   Noble pled guilty without a plea



                                    2
 1   agreement.     We presume the parties’ familiarity with the

 2   underlying facts, the procedural history of the case, and

 3   the issues on appeal.

 4       Appellant was sentenced principally to a term of

 5   imprisonment of 120 months, the statutory maximum, to be

 6   followed by a term of supervised release of three years.

 7   Noting explicitly that the Sentencing Guidelines are

 8   advisory, the district court found that U.S.S.G. §

 9   2K2.1(a)(2) set out the applicable base offense level

10   because Appellant committed the instant crime after

11   sustaining two felony convictions involving controlled

12   substances.     The court determined that a four-level

13   enhancement was warranted because the weapon involved in the

14   charged offense had a defaced serial number.        U.S.S.G. §

15   2K2.1(b)(4).     The court further determined that a second

16   four-level enhancement was applicable because Appellant

17   “used or possessed” the firearm “in connection with another

18   felony offense.”     U.S.S.G. § 2K2.1(b)(6).     A three-level

19   reduction was applied because of Appellant’s acceptance of

20   responsibility and timely notice of his intent to enter a

21   guilty plea.     U.S.S.G. §§ 3E1.1(a) and (b).

22       Appellant’s contention that his Fifth and Sixth


                                      3
 1   Amendment rights were violated when the district court found

 2   facts required to apply the relevant sentencing enhancements

 3   is without merit.   See United States v. Legros, 529 F.3d

 4   470, 477 (2d Cir. 2008); United States v. Martinez, 525 F.3d

 5   211, 214-15 (2d Cir. 2008) (per curiam).    The argument that

 6   the factual underpinning that supports the application of a

 7   sentencing enhancement must be found by a jury beyond a

 8   reasonable doubt has been foreclosed in our Circuit.     See,

 9   e.g., Martinez, 525 F.3d at 214-15; United States v. Guang,

10   511 F.3d 110, 121-22 (2d Cir. 2007).

11       Noble’s argument based on Apprendi v. New Jersey, 530

12   U.S. 466 (2000) fails because “[n]othing in this Court’s

13   jurisprudence suggests any basis for applying a different

14   evidentiary standard to relevant facts merely because they

15   constitute a separate offense, so long as those facts do not

16   increase the maximum statutory punishment to which a

17   defendant is exposed.”   Martinez, 525 F.3d at 215.    As the

18   government argues in its brief to this Court, Appellant’s

19   argument obscures the distinction between facts that enhance

20   the advisory Guideline’s range and facts that increase a

21   defendant’s statutory maximum punishment.

22       Appellant argues that his former counsel provided him


                                    4
 1   with ineffective assistance.    Appellant raises two principal

 2   contentions in this regard.    First, that his then-counsel

 3   failed to argue that the district court lacked the authority

 4   to impose a sentencing enhancement under the Guidelines

 5   absent a jury finding of the underlying facts beyond a

 6   reasonable doubt.   Second, that his former counsel was

 7   ineffective because he failed to request a factfinding

 8   hearing, see United States v. Fatico, 579 F.2d 707 (2d Cir.

 9   1978), to establish whether the sentencing enhancement

10   imposed pursuant to U.S.S.G. § 2K2.1(b)(6) was warranted.

11       This Court has “expressed a baseline aversion to

12   resolving ineffectiveness claims on direct appeal.”     United

13   States v. Pena, 233 F.3d 170, 173 (2d Cir. 2000) (internal

14   quotation marks omitted).     In order to prevail on a claim of

15   ineffective assistance, Appellant must “establish deficient

16   performance and prejudice.”     Knowles v. Mirzayance, — U.S.

17   —, 129 S. Ct. 1411, 1420 (2009).

18       Appellant’s first basis for his ineffective assistance

19   of counsel claim can be rejected based on the above

20   discussion.   An attorney’s “[f]ailure to make a meritless

21   argument does not amount to ineffective assistance.”        United

22   States v. Arena, 180 F.3d 380, 396 (2d Cir. 1999).     We


                                      5
 1   decline to reach the merits of Appellant’s second basis for

 2   his ineffectiveness claim.   Rather, we dismiss this portion

 3   of Appellant’s claim without prejudice so that he remains

 4   free to raise it in subsequent 28 U.S.C. § 2255 motion.     As

 5   the Supreme Court has noted, “in most cases a motion brought

 6   under § 2255 is preferable to direct appeal for deciding

 7   claims of ineffective assistance.”   Massaro v. United

 8   States, 538 U.S. 500, 504 (2003).

 9       In this case, any claim that counsel’s failure to ask

10   for a hearing was a serious error constituting deficient

11   performance, and that such error prejudiced Appellant — both

12   of which would be required to establish a claim of

13   ineffective assistance, see Strickland v. Washington, 466

14   U.S. 668, 688, 693 (1984) — would require evidence that

15   counsel was or reasonably should have been aware that a

16   hearing could have benefitted Appellant.   As any evidence to

17   support these findings would have to come from outside the

18   present record, the issue is best presented in a post-trial

19   application, in which Appellant could present any such

20   evidence that might exist.

21       For the foregoing reasons, the judgment of the district

22   court is hereby AFFIRMED, except that Appellant’s claim that


                                    6
 1   his counsel rendered ineffective assistance by failing to

 2   request a hearing to establish facts relevant to an

 3   applicable sentencing enhancement is DISMISSED WITHOUT

 4   PREJUDICE.

 5

 6                               For the Court
 7                               Catherine O’Hagan Wolfe, Clerk
 8
 9
10




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