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Ortiz Torres v. United States, 1st Cir. (1994)
Ortiz Torres v. United States, 1st Cir. (1994)
December 6, 1994
___________________
No. 93-2303
JANNETTE ORTIZ-TORRES,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
___________________
___________________
Before
Torruella, Chief Judge,
___________
Selya and Cyr, Circuit Judges.
______________
___________________
Jannette Ortiz-Torres on brief pro se.
_____________________
Per Curiam.
___________
Appellant challenges
aboard a cruise
four, who
along
with
ship docked
had boarded
found to be carrying
cocaine
December,
officials
the denial of a
appellant
three
in Puerto
the ship
was
by
travelling companions
Rico.
Each of
the
together in Venezuela,
was
a quantity of cocaine.
in appellant's sole
arrested
possession was
The amount
of
four kilograms.
suitcases of
all four
defendants was
approximately
39 kilograms
(gross
weight).
Having reason
were part of the same
government
in
importing,
joint indictment
in which
they were
four defendants
obtained a
charged in three
and
possessing
the drug.
intent to
Pursuant to
count information
with
indictment
a plea
to a one
unlawfully imported
952(a).
of 40
-2-
years
imprisonment.
See 21 U.S.C.
___
960(b)(2).
The charges
that
were dropped
imprisonment.
carried a
penalty of
See 21 U.S.C.
___
is necessarily
Guidelines, appellant's
base
determined by considering
all
The
to life
960(b)(1).
ten years
presentence report
See U.S.S.G.
___
the
Based
on
participants, the
information
from
government believed
the
other
women
was the
head of the group, and appellant, who had shared a cabin with
him, was
the second
recommended
with
of "I"
criminal record.
See
___
two
responsibility, and
category
base
the total
four defendants.
credited
culpable.
guidelines
corresponded with
all
most
offense
level,
quantity of cocaine
U.S.S.G.
2D1.1.
level adjustment
she
was
assigned
because, at
This
Accordingly, the
for
a
age twenty,
34,
which
carried by
Appellant was
acceptance
months imprisonment.
end
of the
of
criminal
history
she had
no prior
151
PSR
121 to
recommended range,
to 121
months imprisonment.
is that
her plea
-3-
bargain did
not lead
to a
lower
sentence.1
She
challenges
her
guilty
plea
as
errors in
sentencing.
As to
sentencing court
cocaine
covered
perceives
it,
in
she
could consider
the
understand, that
the total
dismissed counts.
thus
netted no
benefit
quantity of
As
appellant
from
her plea
bargain.
To succeed on a
the context of the plea process, appellant must show both (1)
that her
counsel's representation
is a
she
(2) that
reasonable probability
would not
have
879
F.2d
975
(1st
pled
objective
of attorneys in criminal
that, but
guilty
but
meaning that
for counsel's
would
See Panzardi-Alvarez v.
___ ________________
Cir.
1989)
(citing
have
United
______
Hill
____
v.
1082 (1990).
____________________
1. Had appellant's sentence excluded consideration of the
quantity of drugs covered by the dismissed counts, her base
offense level
would have been
30.
Using
the same
determinants, i.e., a two level reduction for acceptance of
responsibility and a criminal history category of "I," the
guidelines range would have been 78 to 97 months. Appellant
also argues that she
should have received a downward
adjustment for "minimal participation."
-4-
only her
an
available record.
allegation that
The
plea
finds
no
agreement she
that she
was
support in
the
signed made
no
petition she
expressed an
of a
awareness of
to forty years.
the statutory
While we
In her
do not
due to
the
claim that
any misinformation
laboring
Even
if we
under
assumed, however,
misapprehension
and
attributable
offers
reason
an
of the claim.
to
was
that appellant
to
believe
that
she pled
but
for
52, 59 (1985).
alone
suffice
to
establish
-5-
claim
of
ineffective
assistance.2
See
___
Cir.
1994)
available
which
short, appellant's
entitlement to
relief
from her
2255
after sentencing
inherently
justice,"
belated allegations
results
only for
in
or "an omission
"a fundamental
complete
Appellant's
plea is
defect
miscarriage
challenge
that as a matter of
four
from a
13 (1st
of
plea under
25 F.3d 10,
relief
do not
to
the
Initially,
constitutional due
based solely on
the
Second, she
fellow
travellers
were
she had no
carrying
illegal
and
by
____________________
2. Appellant did reap a benefit from her plea for without it
she likely would not have received the two level reduction in
her sentence for acceptance of responsibility.
3. Appellant's brief cites the 1989 and 1992 amendments to
U.S.S.G.
1B1.3(a). U.S.S.G. App. C, Amends. 78 & 439 (Nov.
1993).
The
amendments are "clarifying"
rather than
"revisionary" and thus may be consulted for purposes of
interpreting the applicable guideline on appeal, United
______
States v. LaCroix, 28 F.3d 223, 227, nn. 3-5 (1st Cir. 1994),
______
_______
or on an otherwise cognizable
2255 motion, Isabel v. United
______
______
The amendments are
2255 showing of
-6-
failing
to
adjust
her
sentence
F.2d at 437.
to the
"In
the case of
or not
conduct
all
includes
defendant
and
committed
undertaken activity."
Cir.
1993).
conduct
whether
in
Wright, 873
______
jointly undertaken
criminal
conspiracy) relevant
reasonably foreseeable
furtherance
of
the
by
the
jointly
transactions
that form
charged but
question.
of all
of drug
course of
charged as a
acts
"minimal
offense in
activity (whether
for
3B1.2.
consideration by
conduct relevant
downward
dropped.
of the
same
conviction, regardless of
were never
Reyes, 3 F.3d
part
charged, or
initially
_____
Blanco, 888
______
F.2d 907,
_____________
908-11 (1st
873
F.2d at 441.
Our review of
in
this
2255 motion
errors alleged
limited.
Knight v.
______
____________________
"cause" for appellant's earlier failure to raise her claims
because
they are
not made
substantively retroactive.
U.S.S.G.
1B1.10; cf. McCleskey v. Zant, 499 U.S. 467, 487
___ _________
____
(1991).
We bypass
for now, as
unnecessary to our
disposition, further consideration of the relevance of the
"accomplice attribution" amendments
to which
appellant
points, noting however that U.S.S.G.
1B1.3(a) also covers
acts "aided" and "abetted" by the defendant, which well may
be the "relevant conduct"
included here.
U.S.S.G.
1B1.3(a)(1) (1988); see also U.S.S.G. App. C. Amend. 439
_________
(Nov. 1993); LaCroix, 28 F.3d at 227.
_______
-7-
Barring
"exceptional circumstances,"
that could
have
been, but were not raised at the appropriate time, may not be
asserted by collateral attack.
Appellant
failed
to assert
defaulted
them at
Knight, Id. at 7.
______ ___
on
the sentencing
upon
it at
"cause"
and she
no objections whatsoever to
In the
absence of
excuse these
hearing,
She
sentencing.4
sufficient to
twice.
her claims
"an omission
a showing
defaults as
well as
of
a
to a "complete miscarriage of
inconsistent with
the rudimentary
See
___
claim
attempts to
of
excuse
attorney
the defaults
ineffectiveness
by
during
PSR.
constitutional claim of
failure
Id. at 10.
___
However,
upon below,
also
note
that
appellant
makes
certain
without
of Fed. R. Crim. P.
Cir. Aug.
26, 1994).
The Rule 32
the
record on
issue,
of counsel during
appeal
does
not
contain a
will not address this issue for the first time on appeal.
Affirmed.
________
full
-9-