United States Court of Appeals For the First Circuit

No. 17-2213

SANDRI RIJO,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

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

[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before

Howard, Chief Judge, Thompson and Kayatta, Circuit Judges.

David Ramos-Pagán for appellant. David Christian Bornstein, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Francisco A. Besosa-Martínez, Assistant United States Attorney, were on brief, for appellee.

December 3, 2020 KAYATTA, Circuit Judge. Sandri Rijo was found guilty

after trial of conspiring to possess with intent to distribute

five kilograms of cocaine and of aiding and abetting others to do

so as well. On direct appeal, we affirmed his conviction and

sentence. See United States v. Cruz-Feliciano,

(1st Cir. 2015).

Rijo thereafter timely filed a habeas petition under

. On the papers, the district court dismissed Rijo's

section 2255 petition. We then granted a certificate of

appealability under

(c)(2), allowing this appeal

on a single issue: whether defense counsel rendered ineffective

assistance in deciding not to call two witnesses and introduce

certain documents. For the following reasons, we now affirm the

dismissal of Rijo's petition.

I.

In January 2012, law enforcement apprehended a group of

men, including Rijo, after observing them in the process of

smuggling a substantial amount of cocaine by motorboat. See Cruz-

Feliciano, 786 F.3d at 82–83. A later prepared DEA Report of

Investigation stated that, according to cooperating witness Freddy

Altagracia-Medina, Rijo was on board the motorboat that brought

the drugs to shore. See

. This statement conflicted

with Altagracia's testimony at trial that Rijo was on the shore to

receive the drugs while his co-defendants Gary Brito-González and

- 2 - Sandy Navarro were on the boat. See

. The rough notes

of the DEA agent who prepared the report revealed that the agent

had apparently confused "Sandy (Navarro)" with "Sandri (Rijo)" in

reducing Altagracia's oral statement to rough notes and then to a

report. See

.

Rijo's defense counsel at trial opted not to try to

exploit this error. In a nutshell, he regarded the inconsistency

as a dead end, given that it was so easily explained as the agent's

mistake, and he feared that the foray would simply re-run the

prosecution's narrative. Rijo now argues that the decision not to

introduce the DEA report and the agent's notes and not to cross-

examine Altagracia on the inconsistency between the report and his

testimony violated Rijo's right to effective assistance of counsel

under the Sixth Amendment. See, e.g., Strickland v. Washington,

(1984). Success in making such an argument

requires a showing that counsel's performance was "outside the

wide range of professionally competent assistance,"

,

and that there is a "reasonable probability" that the trial would

have ended more favorably to the defendant but for counsel's

errors,

.

For the reasons well stated by the district court, we

find it unlikely that counsel's trial strategy decision was so

unreasonable as to constitute deficient performance under

Strickland. But even if counsel's performance was deficient,

- 3 - Rijo's ineffective assistance claim still fails because there is

no reasonable probability that the results of the trial would have

differed had counsel done what Rijo now argues he should have done.

Law enforcement surveilled the unloading as it occurred and then

stopped the smuggler's vehicles as they left the scene, finding

Rijo in one of them. See Cruz-Feliciano, 786 F.3d at 82–83.

Moreover, government witnesses other than Altagracia also

testified that Rijo was involved in the smuggling. See

Given

Rijo's immediate apprehension at the scene and the government

witnesses' testimony, we find it highly unlikely that any jurors

would have been persuaded by an effort to exploit the easily

explained error in the DEA reports about whether Rijo was on the

boat or on the shore unloading drugs from the boat.

II.

For the foregoing reasons, we affirm.

- 4 -