DeMarco v. United States, 7 F.3d 218, 1st Cir. (1993)

7 F.
3d 218
NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished

opinions may be cited only in related cases.
Leopold DEMARCO, Plaintiff, Appellant,
v.
UNITED STATES of America, Defendant, Appellee.
No. 93-1277.
United States Court of Appeals,

First Circuit.
September 23, 1993
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF RHODE ISLAND
Leopold Demarco on brief pro se.
Edwin J. Gale, United States Attorney, Margaret E. Curran and Lawrence
D. Gaynor, Assistant United States Attorneys, on brief for appellee.
D.R.I.
AFFIRMED.
Before Breyer, Chief Judge, Selya and Boudin, Circuit Judges.
Per Curiam.
Petitioner challenges the denial of a motion under 28 U.S.C. 2255 to vacate,

set aside or correct his sentence.1 He alleges that the district court erroneously
enhanced his sentence two levels for possession of a firearm during the offense.
He also alleges ineffective assistance of counsel in the failure to object on this
ground and to take a direct appeal from the sentence imposed. We affirm the
district court's disposition.
Petitioner pleaded guilty to a cluster of charges stemming from his involvement

in a large scale marijuana distribution operation.2 In return for his plea, the
government agreed to recommend dismissal of two of the charges,3 and

imposition of a sentence at the low end of the guideline offense level chosen by
the court. The plea agreement recited the parties' understanding that defendant's
Criminal History Category was I, and that the applicable guideline offense
level would be either 34, 35 or 36, depending on the district court's ruling.
3
The presentence report calculated the applicable offense level at 36 as follows:

(1) the base offense level was 32; (2) a two level increase was assessed
pursuant to U.S.S.G. 2D1.1(b)(1) for possessing a firearm during the offense;
(3) a four level increase was assessed under U.S.S.G. 3B1.1 for being an
organizer or leader of a criminal activity that involved five or more participants;
and (4) petitioner was awarded a two-level decrease in offense level for
acceptance of responsibility pursuant to 3E1.1.
Petitioner objected only to the four level enhancement for being an organizer or
leader. He successfully renewed this contention as his sole objection at the
sentencing hearing. He testified at length about his role in the conspiracy, the
government presented a rebuttal witness on point, and there were vigorous
arguments by both sides. The district court agreed that petitioner's involvement
qualified only for a two level enhancement under 3B1.1(c), not a four level
enhancement. At petitioner's urging, the court ruled that the proper guideline
offense level was 34.4 Accepting the plea agreement, the court sentenced
petitioner to 151 months, the low end of the lowest guideline offense level
conceded to be applicable by the parties.
Petitioner did not take a timely appeal from the sentence. Instead, he filed a
2255 motion one year later challenging the sentence on the ground that the
court erred in imposing the two level increase for possession of a firearm. He
argued that there was an insufficient nexus between the loaded firearm found in
his home and the narcotics offenses to which he pleaded guilty. In reply to the
government's contention that this claim of error had been forfeited by a double
procedural default, petitioner claimed ineffective assistance by his counsel.5
We agree with the district court's conclusions. On appeal, the fact-finder's

determination that petitioner received effective assistance of counsel at
sentencing, "may be overturned only for clear error." Isabel v. United States,
980 F.2d 60, 64 (1st Cir. 1992). "[P]etitioner bears a very heavy burden on an
ineffective assistance claim." Lema v. United States, 987 F.2d 48 (1st Cir.
1993). "The court must not only find that defense counsel's performance was
deficient, but that it was so prejudicial as to undermine confidence in the
outcome." Strickland v. Washington, 466 U.S. 668, 689 (1984). And petitioner
must "overcome the presumption that, under the circumstances, the challenged
action 'might be considered sound trial strategy.' " Strickland, 466 U.S. at 689
(citation omitted).
7
Applying these standards, petitioner's argument falls far short of the "clear
error" threshold. Petitioner offered no cogent argument or evidence to
overcome the very strong presumption that counsel's failure to object on this
ground was a deliberate strategic decision. The loaded gun had been found in
petitioner's home along with a large amount of cash ($266,230.00), drug
paraphernalia, and a suitcase with marijuana residue. There was substantial
testimony at the hearing, including petitioner's own testimony, that petitioner's
home had served as a routine base of operations for the conspiracy. Even after
the base of operations was moved elsewhere, the presentence report and
testimony showed that petitioner's home continued to be used for drug
distribution activities, and the cash represented profits from the illegal scheme.6
In similar cases we have held that the base offense level should be increased by
two levels under U.S.S.G. 2D1.1(b)(1) unless it is "clearly improbable that
the weapon and the offense were connected." United States v. Corcimiglia, 967
F.2d 724, 726 (1st Cir. 1992); United States v. McDowell, 918 F.2d 1004, 1011
(1st Cir. 1990) (citing cases). Given the admission that illegal drug activities
occurred in the very place where the gun was found, counsel could not have
reasonably expected to succeed on an argument that it was "improbable" that
the gun was connected to the illegal activity. The failure to object on that basis,
especially in light of the court's express inclination to sentence petitioner in
accordance with the plea agreement, was undoubtedly deliberate, and, as the
court held, not prejudicial to petitioner.
As to counsel's failure to take a direct appeal from the sentence, we have held
that where a criminal defendant loses his right to a direct appeal through
dereliction of his counsel, he is entitled to a new appeal without first showing a
meritorious appellate issue. Bonneau v. United States, 961 F.2d 17 (1st Cir.
1992); United States v. Tajeddini, 945 F.2d 458, 466-67 (1st Cir. 1991), cert.
denied, 112 S. Ct. 3009 (1992). However, a defendant who voluntarily forfeits
his right to a direct appeal is not entitled to assign error for the first time on
collateral review without showing both cause for the default and actual
prejudice resulting from the assigned error. United States v. Frady, 456 U.S.
152 (1982); see also Tajeddini, 945 F.2d at 468 (remanding case to district
court to determine whether petitioner had voluntarily foregone his right to
appeal).
10
Petitioner's excuse for failing to take a direct appeal is that he didn't know he
had the right to appeal. First he blames his lack of knowledge on his counsel,
claiming that counsel failed to advise him of his right to appeal. However, the
letter he offered from his attorney does not support this claim.7 Second,
petitioner claims he was in "shock" and under the influence of medication at the
time of sentencing. For this reason, petitioner alleges, he could not understand
the judge's plain statement informing petitioner of his right to appeal the
sentence. Petitioner's "shock" claim, however, is belied by his own lengthy,
concise and responsive testimony at the hearing. And the record shows no
mention of petitioner's use of medication at the time of sentencing.
11
While the district court did not expressly rule on the voluntariness of
petitioner's failure to appeal, the record before us is plain. As the letter from his
counsel affirms, there was no incentive for petitioner to take a direct appeal
because he had obtained all the relief he sought at the sentencing hearing.
Aside from his transparently thin claim of lack of knowledge, petitioner offered
no evidence below to rebut the presumption of a voluntary waiver. He asserts
no other cause for his procedural default, nor any prejudice from the alleged
error.
12
Accordingly, we affirm the judgment below.
Due to a tangled procedural history, summarized in the district court's decision

of February 3, 1993, this appeal is taken from an order denying petitioner's
motion for relief from judgment. That motion, in turn, sought reconsideration of
the court's May 12, 1992 order denying petitioner's motion under 28 U.S.C.
2255
The indictment charged a conspiracy among defendant and six others to

distribute and possess with intent to distribute 1,000 kilograms or more of
marijuana, in violation of 21 U.S.C. 846. In addition to that charge, defendant
pleaded guilty to the following charges in the indictment: possession with intent
to distribute the same quantity, 21 U.S.C. 841(a)(1), 841(b)(1)(4); using a
communications facility for the commission of a narcotics offense, 21 U.S.C.s
843(b); maintaining a place for the purpose of distributing marijuana, 21 U.S.C.
856
The charges dismissed by agreement were: possession of a firearm during and

in relation to a drug trafficking crime, 18 U.S.C. 924(c), and operating a
continuing criminal enterprise, 21 U.S.C. 848
The following exchange between petitioner's counsel and the court occurred in
petitioner's presence at the hearing:
Counsel: [A]ll we are asking you to do is sentence this defendant at the low end
of level 34. He has no quarrel with that at all. He agrees he should be sentenced
at 34.
The Court: You want me to sentence him to 151 months? That's what it is 151
to 188 months.
Counsel: That's what I want, your Honor, yes.
Sentencing Hearing of March 1, 1991, Tr. at 79, ll. 10-17 (emphasis added).
Petitioner had an opportunity to directly address the court after this exchange,
as well as after the court indicated its likely ruling. Petitioner indicated no
objection. Tr. at 86-23 to 90-14.
5
These were the only issues presented below and in petitioner's main brief. In his
reply brief, however, petitioner seems to also argue error in the point level
increase assigned by the district court under 3B1.1(c), the very matter upon
which petitioner prevailed at the sentencing hearing. Reply Br. at 6, 7. Aside
from the reply brief's apparent misstatement of the record (the ultimate increase
was two levels, not four as claimed in the brief), we do not consider alleged
errors assigned for the first time on appeal
In his reply brief petitioner now asserts there was no evidence to connect his
home, and the money found, to the illegal drug activities. These assertions are
flatly contradicted by his own testimony at the hearing as well as that of the
government's witness. Sentencing Hearing of March 1, 1991 at 12-20 to 13-9;
13-19 to 14-6; 21, ll. 9-12; 45 to 46; 52; 55; 59; 68-69; see also, Presentence
Report at 10. We also reject as meritless petitioner's reply brief argument that
dismissal of the charge against him for possession of a weapon in violation of
18 U.S.C. 924(c) was inconsistent with enhancement of his sentence under
U.S.S.G. 2D1.1(b)(1). It is well settled that conduct not formally charged
may enter into the decision on sentencing guideline range. See generally United
States v. Jackson, 1993 U.S. App. LEXIS 22019, at (1st Cir. Aug. 1, 1993)
(citing cases)
The letter from petitioner's attorney dated July 8, 1991, does not state that
petitioner was uninformed. At best it is equivocal on that point
I did not file a Notice of Appeal since it is my recollection that it would not be
in your best interest to raise an issue (1) that you could not win; and (2) that
might open the door to a re-calculation of the entire sentence.
If, however, your recollection differs, you could file a 2255 alleging ineffective
assistance.
Petitioner's Traverse to Government's Objection, Exhibit A.

DeMarco v. United States, 7 F.3d 218, 1st Cir. (1993)

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7 F.

NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished

United States Court of Appeals,

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

Petitioner challenges the denial of a motion under 28 U.S.C. 2255 to vacate,

Petitioner pleaded guilty to a cluster of charges stemming from his involvement

government agreed to recommend dismissal of two of the charges,3 and

The presentence report calculated the applicable offense level at 36 as follows:

We agree with the district court's conclusions. On appeal, the fact-finder's

Accordingly, we affirm the judgment below.

Due to a tangled procedural history, summarized in the district court's decision

The indictment charged a conspiracy among defendant and six others to

The charges dismissed by agreement were: possession of a firearm during and

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