United States Court of Appeals For the First Circuit

No. 14-1588

UNITED STATES OF AMERICA,

Appellee,

v.

LUIS A. GARCÍA-PAGÁN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Howard, Chief Judge, Torruella and Barron, Circuit Judges.

James B. Krasnoo, with whom Benjamin L. Falkner, and Krasnoo Klehm LLP, were on brief, for appellant. Francisco A. Besosa-Martínez, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

October 20, 2015 BARRON, Circuit Judge. Following a brutal home invasion

in Puerto Rico, Luis A. García-Pagán was convicted, after a jury

trial, of carjacking and of carrying a firearm during and in

relation to a crime of violence. The District Court sentenced

García to 420 months' imprisonment. García now challenges his

conviction and sentence. We affirm.

I.

The following evidence of the crime was presented at

trial. At approximately 1:40 a.m. on February 4, 2013, three men

broke into the home of Dr. Noel De León-Roig in Puerto Nuevo,

Puerto Rico. All three intruders wore masks and carried firearms.

De León awoke to one of the men straddling his head and hitting

him in the face. When the lights in the room came on, De León saw

his twelve-year-old son with the other two assailants. One was

pushing a revolver into the boy's mouth. The other held a gun to

the back of the boy's head. At that point, one of the assailants

said, "Doctor, lower your eyes. Lower your arms. This is a

robbery, you son of a bitch."

Over the next hour and a half, the three assailants

terrorized De León and his son. They took tens of thousands of

dollars from De León's safe, along with iPods, computers, watches,

and a plasma TV. The intruders tied up the doctor and his son,

hit them with guns, and threatened to execute them. Around 3:00

- 2 - a.m., the assailants left in De León's car, and De León called the

police.

For a stretch of time during the invasion, the robbers

did remove their masks in order to eat pizza and drink soda that

they had found in De León's kitchen. And so De León saw their

faces. De León later identified García as one of the assailants

from a group of nine people in a photo array within one minute of

being shown the photographs. De León made that identification

very soon after the break-in, at approximately 9:00 a.m. the same

day. De León identified García again in the courtroom at trial.

De León described García as "the focused one" of the three

assailants, and he described one of the other assailants, Ricardo

Urbina-Robles, as the leader of the group.

García argued at trial that he had been misidentified.

He introduced the alibi testimony of his wife, his mother, and a

friend. Together, these three people testified that García saw a

film with his family on the evening of February 3, and then,

sometime in the early hours of February 4, returned with his family

to the housing complex where García lived. García's wife testified

that, after their return from the film, García was in bed the

entire night.

After the close of the evidence and before closing

arguments, defense counsel requested a continuance in order to

move for a writ of habeas corpus ad testificandum for Urbina, to

- 3 - enable Urbina, who was then incarcerated and awaiting sentencing

following his guilty plea for his involvement in this same crime,

to be present and testify in person on García's behalf.1 See

(c)(5) (providing for such a writ). The District

Court denied the request.

The jury returned convictions as to both counts with

which García had been charged: carjacking,

(1),

and carrying a firearm during and in relation to a crime of

violence,

(c)(1)(A)(ii). The District Court

sentenced García to 420 months in prison -- a sentence five years

longer than the sentence the same judge imposed on Urbina. García

appeals.

II.

García challenges his conviction on the basis of the

District Court's supposed error in denying defense counsel's

1 Defense counsel introduced the issue earlier, after the District Court denied the defense's Rule 29 motion. But counsel did not request a continuance at that time. Rather, counsel simply informed the District Court that she had served a subpoena to obtain Urbina's presence, and that she had been instructed to do so by the United States Marshals. The District Court instructed defense counsel that this was the wrong procedure, and that she should have filed a request for a writ of habeas corpus ad testificandum. Then, the day before closing arguments, the District Court raised the issue on its own. The District Court told defense counsel that it had spoken with the marshals and that defense counsel had been wrong as to which officer had told her to file a subpoena. Defense counsel did not request a continuance at that moment either.

- 4 - request for a continuance to file a motion for a writ of habeas

corpus ad testificandum for Urbina. García argues that this denial

deprived him of his Sixth Amendment right to compel the attendance

and testimony of a favorable witness.2

We review the District Court's refusal to grant a

continuance for an abuse of discretion, even if the movant contends

that the denial implicated his Sixth Amendment rights. United

States v. DeCologero,

(1st Cir. 2008). And where,

as here, the defendant requests a continuance after the parties

have rested, the defendant "must . . . show[] that the proffered

evidence was of such importance to the achievement of a just result

that the need for admitting it overrides the presumption favoring

enforcement of the [court's] usual trial procedures." Blaikie v.

Callahan,

(1st Cir. 1982). But García has not

made that showing.

The District Court had good reason to decide that a

continuance would be unnecessarily disruptive to the trial

proceedings, especially given the late date at which the request

for more time was made. Even assuming García made a proffer that

Urbina would provide helpful testimony (a premise the government

disputes), the District Court found -- and the record shows --

2 The Sixth Amendment guarantees a criminal defendant the right "to have compulsory process for obtaining witnesses in his favor." U.S. Const. Amend. VI.

- 5 - that it was not at all clear that Urbina would waive his Fifth

Amendment right and testify if compelled to appear.

If Urbina did testify, the District Court explained, he

would have to identify his accomplices and he "doesn't want to be

called a squealer." And the District Court also noted that it had

spoken to Urbina's attorney and that the attorney had "advised his

client as to what problems he could get into, he has other matters

pending and his client said I don't want to go through a

possibility of getting further charges or perjury or obstruction

of justice or whatever and that his advice to his client, Mr.

Urbina, was that he would not testify."

Moreover, Urbina's testimony would have been up against

the testimony of the victim, De León, who testified that he was

with the assailants for approximately an hour and a half and that

he saw the assailants with their masks off, and who identified

García within a minute of seeing a photograph lineup. Thus, given

the very late stage at which García's counsel requested a

continuance, the District Court's decision to follow its usual

trial procedures was not an abuse of discretion, notwithstanding

García's Sixth Amendment right to compulsory process. See Blaikie,

(concluding that the district court's refusal to

reopen trial to permit an expert witness to testify was not an

abuse of discretion where the proposed witness's testimony was of

limited value to the defendant's case); see also DeCologero, 530

- 6 - F.3d at 74-75 (finding no abuse of discretion where the district

court refused a request, two days before the prosecution rested,

that the court either provide funds to expedite a witness's

transport or grant a continuance until the witness's presence could

be secured where there was no good reason for the delay, and where

the "proffered testimony of [the witness] was tangential and

potentially cumulative"); Watkins v. Callahan,

(1st Cir. 1984) (holding that the district court did not

abuse its "discretion in declining to delay the trial for three

months to await a witness who in all likelihood would [exercise

his Fifth Amendment privilege and] refuse to testify").

III.

García also contends that his prison sentence is

procedurally and substantively unreasonable because it is five

years longer than Urbina's sentence, and because the District Court

did not explain the reason for that disparity. The parties agree

that we should review García's sentence for an abuse of discretion

rather than for plain error, and we proceed on this same

understanding, as García's contentions fail under even that more

forgiving standard.

We begin with García's argument that his sentence of 420

months' imprisonment is procedurally unreasonable because the

District Court failed to explain why that sentence is five years

longer than Urbina's sentence of 360 months' imprisonment. The

- 7 - problem for García is that the District Court did offer an

explanation for this difference.

In response to García's motion to amend his sentence, in

which García raised only the disparity argument, the District Court

entered an electronic docket entry denying the motion and referring

García to our decision in United States v. Ayala-Vázquez,

(1st Cir. 2014). In Ayala, we held that a defendant's life

sentence, though longer than the sentences received by

co-conspirators that the defendant claimed were more culpable than

he, was not unreasonable because the defendant was not similarly

situated to his co-conspirators in a crucial respect: the defendant

had gone to trial, while his co-conspirators had pleaded guilty.

. Thus, in citing to Ayala, the District Court was

clearly relying on this same distinction between the defendant,

García, who did not plead guilty, and his co-conspirator, Urbina,

who did. And we have relied on this very distinction in cases

involving similar disparities in sentencing lengths to the one in

this case. See United States v. Alejandro-Montañez,

(1st Cir. 2015) ("[T]he district court did supply a

sufficient reason for the [more than five-year] disparity between

Defendants and other conspirators: namely, the other conspirators

pled guilty before trial."). So while it would have been

preferable for the District Court to state its reasons for imposing

the harsher sentence more fully, those reasons may be inferred

- 8 - from the record nonetheless. Cf. United States v. Fernández-

Cabrera,

(1st Cir. 2010) ("Even silence is not

necessarily fatal; a court's reasoning [for imposing a particular

sentence] can often be inferred by comparing what was argued by

the parties . . . and what the judge did." (quoting United States

v. Turbides-Leonardo,

(1st Cir. 2006))).

García also argues that the difference between his and

Urbina's sentences renders his sentence substantively

unreasonable. But, in light of Urbina's guilty plea, our precedent

forecloses such an argument in this case. See Alejandro-Montañez,

; see also Ayala-Vázquez,

("[B]ecause the coconspirators who received lesser sentences had

entered guilty pleas whereas Cruz stood trial, the district judge

was not required to conform Cruz's sentence to theirs because those

individuals were not similarly situated to him."); United States

v. Navedo-Concepción,

(1st Cir. 2006) ("The

district judge was not required to reduce Navedo's sentence simply

because he -- unlike the other defendants -- chose to go to

trial."). A defendant who pleads guilty "demonstrates by his plea

that he is ready and willing to admit his crime and to enter the

correctional system in a frame of mind that affords hope for

success in rehabilitation over a shorter period of time than might

otherwise be necessary." Brady v. United States,

(1970). But the same cannot be said of a defendant who, like

- 9 - García, never accepts responsibility for the crime for which he

has been convicted. Alabama v. Smith,

(1989)

("[A]fter trial, the factors that may have indicated leniency as

a consideration for the guilty plea are no longer present."). For

these reasons, García's sentence is not substantively

unreasonable. See United States v. Pol-Flores,

(1st Cir. 2011) ("[T]he linchpin of a substantively reasonable

sentence is a plausible sentencing rationale and a defensible

result." (brackets omitted)).

IV.

García also challenges both his conviction and his

sentence on ineffective assistance of counsel grounds. He contends

that counsel was ineffective during trial in not timely filing a

motion for a writ of habeas corpus ad testificandum to obtain

Urbina's presence and testimony. Second, he argues that counsel

was ineffective at sentencing in not making various arguments on

his behalf.

We have held "'with a regularity bordering on the

monotonous' that ineffective assistance of counsel claims, which

require a showing of deficient attorney performance and prejudice

to the defendant, 'must originally be presented to, and acted upon

by, the trial court.'" United States v. Rodríguez,

(1st Cir. 2012) (quoting United States v. Mala,

(1st Cir. 1993)). "This is because an appellate court usually

- 10 - is ill-equipped to handle the fact-specific inquiry that such

claims often require." United States v. Ofray-Campos,

(1st Cir. 2008). "In addition, the insights of the trier, who

has seen and heard the witnesses at first hand and watched the

dynamics of the trial unfold, are often of great assistance."

United States v. Moran,

(1st Cir. 2004). Thus, our

practice is to dismiss ineffective assistance claims on direct

appeal without prejudice to their renewal in a habeas petition

brought pursuant to

. See United States v.

Delgado-Marrero,

, 197 n.31 (1st Cir. 2014).

We deviate from this practice "only when . . . scrutiny

of the factual record is unnecessary because the attorney's

ineffectiveness is manifestly apparent from the record,"

(quoting United States v. Neto,

(1st Cir. 2011)),

which is not the case here. In considering a § 2255 petition, a

district court will certainly be in a better position to evaluate

in the first instance whether any prejudice resulted from counsel's

not filing in a timely fashion a writ for habeas corpus ad

testificandum. And, too, the district court will be better

positioned than we to develop any facts that may bear on whether

counsel was acting strategically -- rather than ineffectively --

in not making other arguments for leniency at sentencing in a case

involving such egregious criminal conduct. We therefore follow

- 11 - our usual practice and dismiss García's two ineffective assistance

claims without prejudice to their renewal on collateral review.

V.

For the foregoing reasons, García's conviction and

sentence are affirmed. García's two claims of ineffective

assistance of counsel are dismissed without prejudice.

- Concurring Opinion Follows -

- 12 - TORRUELLA, Circuit Judge, concurring. I join the

court's opinion because our precedent requires us to accept that

the disparate sentence García received was not procedurally or

substantively unreasonable in light of the fact that García did

not plead guilty and his co-conspirator, Urbina, did. See United

States v. Ayala-Vázquez,

(1st Cir. 2014); United

States v. Alejandro-Montañez,

(1st Cir.

2015). However, I find it inappropriate and constitutionally

suspect for one defendant to receive a longer sentence than his

co-conspirator when both engaged in the same conduct. In effect,

we are punishing García for exercising his constitutionally

guaranteed rights in opting to go to trial. I fear that our

continued adherence to this belief will only discourage defendants

from exercising the rights that we are all entitled to under the

Constitution.

- 13 -