     13-3275-cr
     United States v. Levine et al.

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                      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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 6th day of October, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                PIERRE N. LEVAL,
 8                              Circuit Judges,
 9                GEOFFREY W. CRAWFORD,*
10                              District Judge.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee
15
16                    -v.-                                               13-3275
17
18       LULZIM KUPA,
19                Defendant-Appellant.
20       - - - - - - - - - - - - - - - - - - - -X
21




                *
               The Honorable Geoffrey W. Crawford, United States
         District Judge for the District of Vermont, sitting by
         designation.
                                                  1
 1   FOR APPELLANT:             JAMES R. FROCCARO JR., LAW
 2                              OFFICE OF JAMES R. FROCCARO,
 3                              Port Washington, New York.
 4
 5   FOR APPELLEE:              ROBERT T. POLEMENI (with David
 6                              C. James on the brief) for Kelly
 7                              T. Currie, United States
 8                              Attorney for the Eastern
 9                              District of New York, Brooklyn,
10                              New York.
11
12        Appeal from a judgment of the United States District
13   Court for the Eastern District of New York (Gleeson, J.).
14
15        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
16   AND DECREED that the judgment of the district court be
17   AFFIRMED.
18
19        Lulzim Kupa appeals from the judgment of the United
20   States District Court for the Eastern District of New York
21   (Gleeson, J.), sentencing Kupa to a 132-month term of
22   imprisonment. We assume the parties’ familiarity with the
23   underlying facts, the procedural history, and the issues
24   presented for review.
25
26        On appeal, Kupa asserts a single claim of ineffective
27   assistance of counsel. This Circuit has a “baseline
28   aversion to resolving ineffectiveness claims on direct
29   review.” United States v. Morris, 350 F.3d 32, 39 (2d Cir.
30   2003) (internal quotation marks and citation omitted).
31   See Massaro v. United States, 538 U.S. 500, 504 (2003)
32   (“[I]n most cases a motion brought under § 2255 is
33   preferable to direct appeal for deciding claims of
34   ineffective assistance.”).
35
36        Here, however, it is not difficult to adjudicate Kupa’s
37   claim on appeal. It is clear from the record that Kupa’s
38   claim fails on the merits because Kupa cannot prevail on the
39   performance prong of Strickland v. Washington, 466 U.S. 668
40   (1984), especially because “[j]udicial scrutiny of counsel’s
41   performance must be highly deferential.” Id. at 689.
42   Kupa’s only argument is that counsel failed to argue that
43   Kupa should not be deemed a career offender. But counsel
44   did so argue: “I, as I indicated, wholeheartedly agree . . .
45   that he’s not a career offender.” A. 128; see also A. 131-
46   33. Indeed, the government accused Kupa’s counsel of
47   breaching the plea agreement precisely because he made this

                                  2
 1   argument. Government Appendix 29 (“[T]he government claims
 2   that we have breached the plea agreement by arguing that
 3   defendant is not a career offender.”).
 4
 5        For the foregoing reasons, and finding no merit in
 6   Kupa’s other arguments, we hereby AFFIRM the judgment of the
 7   district court.
 8
 9                              FOR THE COURT:
10                              CATHERINE O’HAGAN WOLFE, CLERK
11




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