                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               ______________

                                     No. 12-3648
                                   ______________

                          UNITED STATES OF AMERICA

                                           v.

                                MIGUEL VAZQUEZ,
                                             Appellant
                                  ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                          (D.C. No. 5-12-cr-00007-001)
                       District Judge: James Knoll Gardner
                                 ______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                    July 12, 2013
                                  ______________

           Before: GREENAWAY, SHWARTZ, and BARRY, Circuit Judges

                                 (Filed: July 24, 2013)
                                   ______________

                                      OPINION
                                   ______________

SHWARTZ, Circuit Judge.

      Miguel Vazquez appeals the sentence imposed upon him, arguing that he received

ineffective assistance of counsel during his sentencing hearing. For the reasons herein,
we will not review the ineffective assistance of counsel claim on direct appeal and will

affirm the judgment of sentence.

                                              I.

       As we write principally for the benefit of the parties, we recite only the essential

facts and procedural history. On May 23, 2011, Vazquez entered a plea agreement as to a

54-count information in the Eastern District of Pennsylvania. Counts 1-52 charged

Vazquez with aiding the preparation and filing of false income tax returns for other

people, and Counts 53 and 54 charged Vazquez with filing false income tax returns for

himself. Under the plea agreement, Vazquez agreed to waive all rights to appeal or

collaterally attack his conviction or sentence.

       The District Court held a sentencing hearing on June 11, 2012. At the outset of

the hearing, the District Court directed that Vazquez be sworn. After hearing testimony

from a number of character witnesses, the District Court asked defense counsel whether

his client wished to testify and counsel responded affirmatively. Rather than proceeding

with a traditional sentencing allocution, the District Court directed that Vazquez take the

witness stand, recognized that Vazquez was under oath, and directed counsel to inquire of

his client. Counsel asked Vazquez questions concerning the circumstances of his guilty

plea, his receipt of public assistance, and his payment of restitution. Vazquez responded

with fact testimony, but also made statements expressing remorse and his desire to be a

better person in the future. Counsel then asked Vazquez whether there was anything else


                                              2
he wanted to say to the District Court before sentencing. The District Court invited

Vazquez to speak in Spanish. He stated:

      I want to say I am very sorry for what I have done. I ask the forgiveness of
      the United States of America. I thank the federal agents for presenting the
      case now instead of later. Perhaps if it had gone on when it’s later, it would
      have been worse for me. I thank the Lord that I have come to know Him
      and I’ve become spiritual. And I only wish to ask the judge to grant me the
      opportunity to re-vindicate my life, be a good husband, help my children
      and become a better human being.

App. 55-56.

      The District Court then offered the Government an opportunity to cross-examine

Vazquez. The Government inquired as to the circumstances of the charged offenses,

Vazquez’s receipt of public assistance payments, and Vazquez’s charitable contributions.

During a brief re-direct examination, Vazquez testified that he had listed two properties

for sale to put towards restitution. Counsel was then asked to verify that the segment of

Vasquez’s testimony in which he addressed the District Court was “his exercise of his

right of allocution.” App. 65. Counsel verified that it was. The District Court then asked

counsel if Vazquez had anything else to say in allocution, and counsel replied that

Vazquez did not.

      After each side presented its sentencing argument, the District Court asked

whether there was “anything further from anyone” and each side responded in the

negative. App. 73. The District Court then announced its sentence of 120 months’

imprisonment, one year of supervised release, restitution of $1,600,000 to the Internal

Revenue Service, and $5,400 in special assessments.
                                            3
       Vazquez appealed his sentence.1 The District Court had jurisdiction pursuant to

18 U.S.C. § 3231. We exercise jurisdiction pursuant to 28 U.S.C. § 1291.

                                            II.

       We ordinarily do not review claims of ineffective assistance of counsel on direct

appeal. United States v. Thornton, 327 F.3d 268, 271 (3d Cir. 2003). Rather, the

preferred avenue to raise ineffective assistance claims is a collateral proceeding pursuant

to 28 U.S.C. § 2255 because the district court is “the forum best suited to developing the

facts necessary to determining the adequacy of representation” before the trial court and

has an “advantageous perspective” to evaluate the overall effectiveness of trial counsel.

Massaro v. United States, 538 U.S. 500, 504-06 (2003). Although there is a narrow

exception to this rule in cases “[w]here the record is sufficient to allow determination of

ineffective assistance of counsel,” United States v. Headley, 923 F.2d 1079, 1083 (3d Cir.

1991), this Court routinely declines to review ineffective assistance claims on direct




       1
         The parties disagree about whether the waiver provision in Vazquez’s plea
agreement precludes the present challenge to his sentence. Because we decline to review
the ineffective assistance claim on direct appeal, we need not, and do not presently,
decide whether Vazquez waived his right to raise such a claim. Rather, we address only
the procedural device to be used if the claim has not been waived and is not otherwise
barred. Thus, nothing herein constitutes a ruling as to whether Vazquez has waived his
right to raise such a claim pursuant to his plea agreement or whether such a claim
predicated upon Fed. R. Crim. P. 32 is cognizable under Section 2255. See Hill v. United
States, 368 U.S. 424, 428-29 (1962); United States v. Adams, 252 F.3d 276, 281 (3d Cir.
2001).

                                            4
appeal where either prong of the Strickland2 analysis would be better analyzed in the first

instance before the trial court. See, e.g., United States v. Sandini, 888 F.2d 300, 312 (3d

Cir. 1989) (declining to consider a direct appeal where “the record is insufficient for us to

determine whether a reasonable attorney would have filed a motion to dismiss on speedy

trial grounds”); Thornton, 327 F.3d at 272 (“Even though the Government concedes

defense counsel’s error, the Court’s opinion in Massaro points out that the issue of

prejudice is also best decided in the first instance in a collateral action rather than on

direct review.”) (footnote omitted). For the reasons that follow, both Strickland prongs

are best assessed in this case before the District Court in the first instance.

A.     Adequacy of Representation

       An assessment of defense counsel’s adequacy during the sentencing hearing may

require a more developed record and, in any event, would be best performed in the first

instance by the Judge present at the hearing. Vazquez’s ineffective assistance claim

concerns counsel’s failure to object when the District Court: (1) placed Vazquez under

oath at the outset of the hearing and later permitted the United States to cross-examine

him; and (2) did not ask Vazquez directly whether he wished to say anything further in

allocution, purportedly in violation of Federal Rule of Criminal Procedure 32(i)(4)(A)(ii).



       2
         Under the two-pronged test set forth in Strickland v. Washington, a defendant
claiming ineffective assistance of counsel must demonstrate that: (1) counsel’s
performance was deficient, in that it fell below an objective standard of reasonableness;
and (2) the defendant suffered prejudice as a result of the deficiency. 466 U.S. 668, 687
(1984).
                                               5
Both of these arguments concerning counsel’s performance would be better considered

via a collateral attack (if such an attack has not been waived).

       First, it is conceivable that counsel strategically chose to permit Vazquez to testify

under oath during sentencing. The present record reflects that, after Vazquez’s guilty

plea, the District Court learned of potentially aggravating considerations involving

dishonesty with the United States Probation Office, improper receipt of welfare

payments, and failure to support numerous children. Counsel may have decided that

Vazquez could more credibly address these considerations while sworn and subject to

cross-examination.    On the present record, we therefore “have no way of knowing

whether” proceeding in this fashion without objection “had a sound strategic motive.”

Massaro, 538 U.S. at 505.

       Second, although the District Court may not have expressly asked Vazquez if he

wished to allocute, the District Court did address Vazquez numerous times during the

sentencing hearing, including a personal invitation to speak in his native language when

Vazquez was about to express regret, seek forgiveness, thank the federal agents involved

in his case, and ask the District Court for a second chance. Under these circumstances,

counsel may have determined that the interaction between Vazquez and the District Court

fulfilled the requirements of Rule 32(i)(4)(A)(ii) and that requesting anything more

would have been unnecessary or strategically unsound. Moreover, the District Court is in

the best position to assess its unspoken interactions with Vazquez that may further

solidify compliance with Rule 32 and show that counsel’s decision not to object to the
                                              6
procedure the District Court employed during sentencing was sound. See Green v.

United States, 365 U.S. 301, 304-05 (1961) (“[T]his record, unlike a play, is

unaccompanied with stage directions which may tell the significant cast of the eye or the

nod of the head.      It may well be that the defendant himself was recognized and

sufficiently apprised of his right to speak and chose to exercise this right through his

counsel.”).   Because the present record appears to reflect that the District Court

personally interacted with Vazquez, who in turn provided statements in allocution, this is

not a case “in which trial counsel’s ineffectiveness is so apparent from the record” 3 that

we will consider Vazquez’s ineffectiveness claim on direct appeal. Massaro, 538 U.S. at

508.

B.     Prejudice

       Furthermore, assessing whether any deficiency in counsel’s performance at

sentencing prejudiced Vazquez is a task uniquely suited, at least in the first instance, to

the court that imposed his sentence. See Thornton, 327 F.3d at 272 (stating that “the

issue of prejudice is also best decided in the first instance in a collateral action rather than

on direct review”) (citing Massaro, 538 U.S. at 505). The present record reflects that the

District Court considered Vazquez’s statements in light of the sentencing factors set forth


       3
         Vazquez relies on our holding in United States v. Polk, 577 F.3d 515 (3d Cir.
2009), to argue that this case fits the narrow exception for situations where the record on
direct appeal is sufficient to allow determination of ineffective assistance. In Polk,
defense counsel “freely concede[d] that at sentencing he missed the arguable effect of”
Supreme Court precedent. Id. at 520. There has been no such concession here.

                                               7
in 18 U.S.C. § 3553(a) when it imposed a sentence of 120 months’ imprisonment, which

was within the advisory guideline range. Thus, it may be difficult to show counsel’s

performance prejudiced Vazquez in any way, but we will defer to the District Court to

opine on this subject if Vazquez files, and it is determined he has not waived his right to

pursue, a Section 2255 petition.4

                                           III.

       For the foregoing reasons, we will affirm the District Court’s judgment of

sentence without prejudice to Vazquez’s filing of a petition under 28 U.S.C. § 2255 to

raise an ineffective assistance of counsel claim, to the extent he is found not to have

waived his right to do so.5




       4
         Although Vazquez cites Adams, 252 F.3d 276, for the proposition that
deficiencies in the allocution process are presumptively prejudicial, we have only applied
the presumption in cases in which the defendant did not address the sentencing court at
all. Moreover, even if a presumption of prejudice attached, the District Court would be
best-equipped to determine whether that presumption could be rebutted in the present
case.
       5
         The motion of the United States for summary affirmance and to enforce the
appellate waiver will be denied as moot.
                                            8
